9th Circuit Denies Class Cert. In Colgate False Ad Lawsuit

The Ninth Circuit Court of Appeals has ruled that a customer lawsuit against Colgate-Palmolive accusing the company of falsely advertising its Optic White toothpaste cannot obtain Class certification.

The three-judge panel decision affirmed the opinion of a lower court against plaintiffs Jacqueline Dean and Melanie Barber, who had wished for class certification of their Colgate toothpaste lawsuit.

The plaintiffs alleged in their putative Colgate class action lawsuit filed in 2015 that the company made false representations that their Colgate Optic White toothpaste “goes beyond surface stain removal to deeply whiten,” and that it is “clinically proven to whiten teeth.”

The Colgate class action lawsuit claimed that the toothpaste only reaches stains on the surface of teeth and does not “deeply whiten” teeth.

The Colgate-Palmolive class action lawsuit stated that the plaintiffs were tricked into buying the Colgate Optic White toothpaste because they thought that the product would go beyond just whitening the surface of their teeth for a deeper clean.

Dean states that she “would not have purchased Colgate Optic White if the label and television commercials had not stated that it would deeply whiten her teeth.”

“Although [Dean] has been purchasing and using Colgate Optic White as directed since January 2013, Colgate Optic White has not deeply whitened her teeth, or affected any of the intrinsic stains on her teeth,” the Colgate lawsuit claims.

However, the Colgate toothpaste class action lawsuit states, “In fact, toothpastes cannot go beyond surface stains to deeply whiten teeth because peroxide in toothpaste does not function as a whitening agent on intrinsic stains.”

The Colgate-Palmolive class action lawsuit claims that dentists have maintained that toothpaste with peroxide does not work on deep stains because there is not enough peroxide in the product.

In addition, the plaintiffs say research shows that “the whitening effect of hydrogen peroxide in toothpaste is not clinically significant.”

The Colgate-Palmolive class action complaint also points out that the National Advertising Division of the Better Business Bureau found that Colgate-Palmolive did not have enough evidence to back up their claim that hydrogen peroxide “functions as a significant whitening agent on intrinsic stains.”

The U.S. District Court ruled in March 2018 that the plaintiffs did not meet the federal standard for having a Class certified.

The Court of Appeals has ruled that, “The district court did not abuse its discretion when it required Appellants to show, as a constitutional threshold for application of California law classwide, ‘that California has ‘significant contact or significant aggregation of contacts’ to the claims of each class member.”

The plaintiffs brought this class action lawsuit under the California Consumer Legal Remedies Act, California’s Unfair Competition Law, and California’s False Advertising Law.

Dean and Barber are represented by L. Timothy Fisher and Frederick J. Klorczyk III of Bursor & Fisher PA, Rosemary M. Rivas and Courtney E. Maccarone of Levi & Korsinsky LLP and Christopher Marlborough of The Marlborough Law Firm PC.

The Colgate-Palmolive Teeth Whitening Toothpaste Class Action is Dean, et al. v. Colgate-Palmolive Co., Case No. 18-55982, in the U.S. Court of Appeals for the Ninth Circuit.

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