"recyclable" plausibly misleading where no recycling facilities accept the product

Della v. Colgate-Palmolive Co., 2024 WL 457798, No. 23-cv-04086-JCS (N.D. Cal. Feb. 6, 2024)

Della’s consumer protection claims turn on allegedly false labeling of toothpaste products as “recyclable” when, as alleged, recycling facilities that actually accept the used tubes are basically unavailable. Indeed, allegedly “there is not a single program that accepts toothpaste tubes of any kind” in California or in the United States” “because of the processing concerns that they pose.” Colgate argued that the tubes were made out of a type of plastic that is widely accepted by recycling facilities and therefore, that they are intrinsically capable of being recycled, which is also what a reasonable consumer would expect. The court declined to dismiss the claims on this ground.

The court distinguished Swartz v. Coca-Cola Co., 2022 WL 17881771 (N.D. Cal. Nov. 18, 2022), where reasonable consumers would not understand “100% recyclable” to mean that no bottles would end up in landfills or incinerators, which allegedly occurred due to a lack of recycling capacity and a lack of demand for recycled plastic. That case did say that “a reasonable consumer would understand that making an object recyclable is just the first step in the process of converting waste into reusable material, and not a guarantee that the process will be completed.” But the context was quite different: the court there pointed to the FTC Green Guides allowing an unqualified claim of recyclability may be made “if recycling facilities are available to at least 60% ‘of consumers or communities where the item is sold.’ ” Here, plaintiffs didn’t allege that Colgate’s claims were misleading because consumers would understand them to “guarantee” that the tubes would actually be recycled. Instead, they alleged that a reasonable consumer would not expect that the tubes were not accepted for recycling by any existing recycling program, and that they are intrinsically unsuited for recycling due to their shape (indistinguishable from non-“recyclable” tubes) and the fact that they can’t be fully emptied, thus contaminating a recycling system.

Colgate argued that this wasn’t its fault, but that’s not the standard for misleadingness. Nor were Colgate’s “learn more” statements on its packaging sufficient as disclaimers.

“[C]ourts are generally reluctant to charge a reasonable consumer with the obligation of reviewing product websites or other written product materials before purchasing the product.”

Although the court didn’t rely on the Green Guides in assessing misleadingness, it disagreed with Colgate that they allowed its representation. Under the Green Guides, “marketers can make unqualified recyclable claims” only “[w]hen recycling facilities are available to a substantial majority of consumers or communities where the item is sold.” They add that “[i]f any component significantly limits the ability to recycle the item, any recyclable claim would be deceptive. An item that is made from recyclable material, but, because of its shape, size, or some other attribute, is not accepted in recycling programs, should not be marketed as recyclable.”

California law allows the California Department of Resources Recycling and Recovery to grant an exemption from the general standards that govern what is considered “recyclable” under state law where materials are “trending toward” meeting the requirements of recycling availability “through either statewide recycling programs or alternative programs, such as take-back systems, and for which the continued increase in the collection, sorting, and viable responsible end market development the department determines will be disrupted by a loss of a recyclable designation.” But Colgate hasn’t received such an exemption.

Finally, plaintiffs had standing to seek injunctive relief because they wanted to buy recyclable toothpaste tubes.