no summary judgment on "non-toxic" and "Earth friendly"

Bush v. Rust-Oleum Corp., 2024 WL 308263, No. 20-cv-03268-LB (N.D. Cal. Jan. 26, 2024)

Bush alleged that Rust-Oleum falsely labeled of its “Krud Kutter” cleaning products as “non-toxic” and “Earth friendly.” Rust-Oleum sought summary judgment on the California consumer protection claims based on the argument that likely deception was refuted by disclaimers on the labels themselves and testimony from the plaintiff and his expert toxicologist. The court declined to grant summary judgment.

At the pleading stage in this case, the court held that the plaintiff’s definition of “non-toxic” — that “the product[s] did not pose any risk to humans, animals, or the environment” — was sufficient. But “the plaintiff and his expert toxicologist said during their depositions that risk can never be completely eliminated (for example, even water can be toxic in excess amounts),” so no reasonable consumer would believe the Krud Krutter products to be totally free of risk. Here, whether the plaintiff’s asserted definitions are reasonable were for the jury to decide as part of the overall reasonable-consumer test.

For the challenged claim “non-toxic,” Rust-Oleum argued that the plaintiff’s expert toxicologist’s theory of toxicity is disclosed on the front labels of its products, which say “Caution: Eye and Skin Irritant” next to the words “Non-Toxic.” But the expert opinion goes beyond eye and skin irritation, creating a genuine dispute of fact.

For the challenged claim “Earth friendly,” the rear of the product labels provide a definition of the claim. “But the definition is in small type and the defendant’s own surveys provide evidence that most consumers do not read it.” Again, a fact issue, and “Earth friendly” was not so general or nonspecific as to make it “extremely unlikely” that a consumer would rely on it. The defendant’s own surveys suggested as much, and California law did as well. White v. Kroger Co., No. 21-cv-08004-RS, 2022 WL 888657, at *2 (N.D. Cal. Mar. 25, 2022) (“California view[s] terms on the label or container of a consumer good like ... ‘earth friendly’ ... to mean that the product is not harmful to, or is beneficial to, the natural environment. While ... [this] California statute [does not] directly create[ ] a private cause of action, [it] do[es] undermine any argument that ‘reef friendly’ can be dismissed as mere puffery.”) (cleaned up).