non-toxic plausibly means nonharmful, but harmfulness still needs adequate pleading

Rivera v. S.C. Johnson & Son, Inc., 2021 WL 4392300, No. 20-CV-3588 (RA) (S.D.N.Y. Sept. 24, 2021)

Plaintiffs alleged that S.C. Johnson’s labeling of its Windex cleaning products as “Non-Toxic” was misleading in violation of NY’s GBL because those products contain ingredients that may be harmful to humans, pets, or the environment. The court rejected many of S.C. Johnson’s arguments but ultimately found that plaintiffs failed to allege that the products were harmful.

Plaintiffs alleged that the NAD had found that “the term ‘non-toxic’ as used by the Products signifies to reasonable consumers” that those Products will not cause “harm,” meaning “various types of temporary physical illness, such as vomiting, rash, and gastrointestinal upset.” The allegedly harmful ingredients include “acetic acid, alkylbenzene sulfonate, ammonium hydroxide, benzyl benzoate, fragrance components, isopropanolamine, lactic acid, lauramine oxide, propylene glycol, sodium hydroxide, sodium petroleum sulfonate, sodium xylene sulfronate, [and] 2-(hexyloxy)-ethanol.” They alleged that the ingredients were capable of causing certain harmful effects at their “in-use concentrations,” which weren’t disclosed on the products, so the allegations were based on information and belief.

Plaintiffs plausibly alleged that a reasonable consumer might share their understanding of the meaning of “non-toxic.”  S.C. Johnson argued that no reasonable consumer would believe that that “a non-toxic label implies that a product [neither] (1) pose[s] any risk of harm to humans, animals, or the environment, [nor] (2) contain[s] potentially harmful and toxic compounds.” “Although the Court finds that argument appealing from a common-sense perspective, it cannot determine as a matter of law that no reasonable consumer would share Plaintiffs’ understanding of the word toxic.” Plaintiffs’ allegations weren’t implausible or inconsistent with dictionary definitions; even the dictionary preferred by S.C. Johnson offered an alternative definition of “toxic” as “extremely harsh, malicious, or harmful.” “Perhaps that is why, as alleged in the Complaint, the Environmental Protection Agency has cautioned ‘that marketers will rarely, if ever, be able to adequately qualify and substantiate [ ] a claim of “non-toxic” in a manner that will be clearly understood by consumers.’” The NAD’s holding also “undercuts the Company’s characterization of Plaintiffs’ definition as implausible. Indeed, the independent substantiation of a reasonable consumer’s understanding of ‘non-toxic’ helps nudge the claims ‘across the line from conceivable to plausible.’” 

However, plaintiffs failed to allege that the products were toxic by their own definition. “The parties appear to agree that a product could fairly be described as non-toxic as a whole if it ‘contain[s] a toxic substance [but only] at a level that is not harmful to humans or the environment.’” But plaintiffs “essentially acknowledge that they do not know the actual concentrations of the ingredients,” and don’t explain how they came to have their beliefs about the in-use concentrations.  Though S.C. Johnson doesn’t disclose concentrations/percentages, and though Twiqbal doesn’t prevent information/belief pleading when facts are peculiarly within the possession and control of the defendant, plaintiffs had additional options.

First, even if the precise specifications were secret, “information about the effect of those ingredients in their current concentrations is not.” These widely-sold products could have generated publicly available evidence of harm to “people ..., common pets, or the environment,” and plaintiffs didn’t cite their own experiences or even internet reviews. Second, they could have tested the products. Plaintiffs need not always provide an expert to conduct sophisticated chemical analysis before bringing suit. “But the fact that the Products can be purchased at stores as ubiquitous as Target and tested suggests that basic facts about their chemical composition is not something exclusively in the control of Defendant. At the very least, the Complaint could contain allegations as to why such testing would not have been possible here—it does not.” And finally, consultation with experts in the field might have been able to provide “even minimal support” for their bald assertion that “the ingredients’ likely concentrations or percentages by weight” are sufficient to cause harm.

The court did find that plaintiffs’ price premium theory sufficed to allege harm, but that they lacked standing to seek injunctive relief. It was not enough to allege they’d buy in the future only “if assured [they] did not contain components which were toxic and had the harsh physical and environmental effects they did.” However, they did have standing to challenge non-toxic labels on products they didn’t buy because they were sufficiently similar to those products that they did purchase and because the “deceptive non-toxic marketing is identical on each product.” The products need not be nearly identical; rather, the claims about falsity have to raise a “set of concerns [that are] nearly identical.” That was so.