Colgate, Tom’s of Maine Ask Judge to Pause ‘Natural’ Products Class Actions

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Last week, Colgate-Palmolive Co. and its subsidiary Tom’s of Maine Inc. urged the federal judges overseeing their cases alleging improper labeling of “natural” products to stay the class action lawsuits until the U.S. Food and Drug Administration determines how the term “natural” can be used on food labels.

According to the defendants’ memorandum of law supporting their motion to stay the litigation, the FDA is close to making a determination about the use of the term “natural,” as the federal agency has already completed its inquiry into the issue.

“The FDA has solicited comments and proposals from the public and industry groups on the issues raised in the First Amended Complaint, including what types of ingredients would disqualify a product from bearing the term ‘natural’ and whether the manner in which an ingredient is produced or sourced should affect whether a product containing the ingredient may be labeled as ‘natural,’” the memo says.

The notice and comment period reportedly ended in May 2016, and the FDA received more than 7,6000 comments from companies, food experts, legal authorities and consumers, the defendants claim. The federal agency will use the information to formulate a rule proposal about the labeling issue.

Further, the defendants argue that courts have already stayed other “natural” cases and deferred to the FDA for guidance. They argue that issuing a stay for the natural products class action lawsuits against them will allow the court to consider the FDA’s guidance before ruling on the cases, and will make it more likely that the courts’ rulings on “natural” labels will be more consistent across the country.

Colgate and Tom’s assert that a stay is warranted under the primary jurisdiction doctrine, which allows judicial deference to an agency that also has jurisdiction over an issue. This doctrine is meant to ensure uniformity of ruling to comply with the regulatory authority’s rules.

The first Tom’s of Maine class action lawsuit was filed in New York by plaintiffs Anne de Lacour and Andrea Wright in October 2016. They allege they regularly purchased Tom’s of Maine deodorants thinking they contained all natural ingredients when they actually contained synthetic and chemically-processed ingredients, including sodium lauryl sulfate and glycerin.

These artificial ingredients are also included in many other Tom’s of Maine products, including its toothpaste, lotion and soap products, Lacour and Wright allege.

In November 2016, plaintiff Schulyer White filed a similar natural products class action lawsuit in California federal court, alleging the “natural” Tom’s of Maine products he purchased for his children were made with synthetic chemicals.

The California plaintiffs are represented by Brian J. Robbins, Kevin A. Seely, Ashley R. Rifkin and Leonid Kandinov of Robbins Arroyo LLP and Rebecca A. Peterson and Robert Shelquist of Lockridge Grindal Nauen PLLP. The New York plaintiffs are represented by Scott A. Bursor, Joshua D. Arisohn and Philip L. Fraietta of Bursor & Fisher PA.

The Tom’s of Maine Natural Products Class Action Lawsuits are White v. Colgate-Palmolive Co., et al., Case No. 3:16-cv-02808, in the U.S. District Court for the Southern District of California and Lacour, et al. v. Colgate-Palmolive Co., et al., Case No. 1:16-cv-08364, in the U.S. District Court for the Southern District of New York.