A class action lawsuit has been filed in a California federal court against the Colgate-Palmolive Company (“Colgate”), alleging the company falsely advertises its Colgate and Tom’s of Maine branded toothpaste tubes as recyclable. The complaint alleges that Colgate’s claims are a violation of the Federal Trade Commission’s Green Guides, which prohibits a product from being called recyclable “unless there is an established recycling program, municipal or private, through which the product will be converted into, or used in, another product or package.”
The complaint also alleges California Business and Professions Code violations, which make it “unlawful for any person to make untruthful, deceptive, or misleading environmental marketing claims.”
A number of Colgate branded products, including but not limited to its popular products Colgate MaxFresh Toothpaste, Colgate Optic White Toothpaste, and Colgate Sensitive Toothpaste, feature the three-arrow recycling symbol atop the language “Recyclable Tube.” The company’s Tom’s of Maine product packaging advertises its toothpaste tubes as “The First of its Kind Recyclable Tube.” This language is used on over ten of its toothpaste products. None of the packaging of these products, Colgate or Tom’s of Maine, includes language that limits or qualifies the recyclability claims.
Additional recyclability claims are made on the brands’ websites. The Tom’s of Maine website features the following claims, which the Plaintiff alleges are misrepresentations:
- “Recyclable Tube”
- “Recycle Me!”
- “Buy Smart – By reaching for this toothpaste tube you’re actively making a difference.”
- “Recycle It – Our recyclable tube is not meant for a landfill – it gets turned into useful products.”
- “As the leaders in the oral care industry, we wanted to create a recyclable alternative.”
While the toothpaste tubes are theoretically recyclable, a consultant at the Association of Plastic Recyclers stated, “[f]or many facilities in the US, the company’s new recyclable tubes are indistinguishable from those made from more common plastics, prompting recyclers to reject them. The old tubes could cause contamination if consumers put them in the recycling bin, so it’s easier for recycling facilities to reject toothpaste tubes across the board.”
In support of its argument, the complaint cites a recent Bloomberg article discussing the accuracy of Colgate’s claims with two solid waste management companies operating in California. (The two companies, Waste Management, Inc. and Republic Services, account for more than 40 percent of recycling services provided to consumers in California and about 25 percent of the recycling services on a national scale.) The companies highlighted that toothpaste tubes “are not in its list of acceptable items” and that there is serious concern about contamination from leftover toothpaste that remains in the tube.
According to the complaint, Colgate is fully aware that its products end up in landfills or are incinerated because recycling facilities do not accept its products. Colgate has even gone so far as to release a video on its website stating as much and explaining that the company is “continu[ing] the work beyond technically recyclable toward acceptance of tubes in recycling centers.” If recycling centers do not accept toothpaste tubes, their recyclability is irrelevant, and labeling and advertising their products as recyclable is false, misleading, and deceptive to consumers and members of the public seeking to make environmentally conscious purchasing decisions.
Plaintiffs seek an injunction on the sale of these products until such time the labeling and advertising language can be modified to remove recyclability language or alternatively to include a qualified claim that accurately states the availability of recycling programs. To be in compliance with the Green Guides’ environmental marketing requirements, a company is only permitted to make unqualified recyclable claims “[w]hen recycling facilities are available to a substantial majority of consumers or communities where the item is sold.” The Guides further clarify a substantial majority to mean at least 60 percent, and that “[w]hen recycling facilities are available to less than a substantial majority of consumers or communities where the item is sold, marketers should qualify all recyclable claims.”
Additionally, Plaintiffs are seeking compensatory and statutory damages.