Colgate Seeks Dismissal of Optic White False Advertising Class Action

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Colgate-Palmolive is seeking to dismiss a proposed class action lawsuit alleging the company falsely advertises the whitening ability of its Optic White toothpaste, arguing the plaintiffs’ claims are preempted by federal law.

In a motion filed last week, Colgate told the court that plaintiff Lori Canale’s complaint challenging the advertising statements that Optic White toothpaste “Goes Beyond Surface Stain Removal to Deeply Whiten” are not barred by federal law.

Specifically, Colgate points out that the Food and Drug Administration (FDA) has issued guidance regarding toothpaste labeling and the use of peroxide-containing tooth-whitening products, but has actually never prohibited the use of the statements at issue in the lawsuit.

“This action strikes at the heart of the authority of federal agencies to enact and enforce uniform labeling requirements for over-the-counter drugs and cosmetics,” the company said. “Congress has recognized the need to create uniform, nationwide regulations for such products to avoid inconsistent, piecemeal regulation and litigation at the state level.”

Colgate further argued that “because federal agencies have regulated the subject matter of this action but have never prohibited the statements at issue, Plaintiff’s claims are preempted by federal law and are facially invalid under New York’s General Business Law.”

In May 2016, Canale filed the proposed class action lawsuit against Colgate-Palmolive for allegedly deceptively marketing its Optic White and Optic White Platinum toothpastes, stating the toothpastes do not whiten teeth as advertised.

According to Canale, she purchased Optic White in early 2015 based on representations that the toothpaste would “deeply whiten” teeth and that it “goes beyond surface stains unlike other toothpastes.” However, Canale claims that the toothpaste “did not whitened [sic] her teeth, or affect any of the intrinsic stains on her teeth.”

The lawsuit asserts that there is not enough of the whitening ingredient (one percent hydrogen peroxide) in the toothpaste and the whitening ingredient is not in contact with the teeth for long enough.

Canale’s lawsuit follows a class action lawsuit brought by plaintiff Jacqueline Dean in California federal court in January 2015. Represented by the same attorneys, Dean’s lawsuit raises similar allegations that Colgate misled consumers about the whitening ability of Optic White.

Colgate unsuccessfully attempted to dismiss the California case on grounds that clinical evidence substantiates their advertising claims regarding the whitening ability of Optic White.

However, given the similar questions of fact and law presented in the cases, a motion was filed to establish centralized pretrial proceedings for the two cases. The motion was rejected by the Joint Panel on Multidistrict Litigation in October.

Canale is represented by Joseph I. Marchese of Bursor & Fisher.

The New York Colgate Optic White Class Action Lawsuit is Lori Canale v. Colgate Palmolive Co., Case No. 7:16-cv-03308, in the U.S. District Court for the Southern District of New York.

The California Colgate Optic White Class Action Lawsuit is Jacqueline Dean v. Colgate Palmolive Co., Case No. 5:15-cv-00107, in the U. S. District Court for the Central District of California.