Can you promote that a product is recyclable, when it's made of recyclable plastic, if that product isn't widely accepted by recycling facilities? That was the issue in a recent case in federal court in California.
Consumers sued the Colgate-Palmolive Company, under California law, alleging that the company falsely promoted that the tubes for its Colgate and Tom's of Maine brands of toothpaste are recyclable. The plaintiffs alleged that Colgate-Palmolive made claims such as, "Recyclable Tube," "First of Its Kind Recyclable Tube," and "Recycle Me," and also used the chasing arrows symbol. The plaintiffs charged, however, that these claims were false and misleading because virtually all of the municipal recycling programs in the United States do not accept toothpaste tubes for recycling. Apparently, that's because not only can the programs not distinguish between recyclable and non-recyclable toothpaste tubes, but the leftover toothpaste in the tubes contaminates the recyclable waste stream.
The plaintiffs' false advertising claim is governed by the "reasonable consumer" test. Under this standard, the plaintiffs have to demonstrate that "members of the public are likely to be deceived." That means that "a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."
Colgate-Palmolive moved to dismiss, arguing, essentially, that it's not misleading for the company to claim that its products are recyclable, since the "recyclable" claim is an "accurate representation of the intrinsic character of the Products." In other words, since the tubes are, in fact, made of recyclable plastic, it shouldn't matter that recycling facilities don't accept the tubes for recycling. The court was not persuaded by Colgate-Palmolive's arguments and allowed the case to proceed.
While the court does a deep dive into recent cases in this area, ultimately, the court really just doesn't think that Colgate-Palmolive's arguments make any sense. If you promote a product as being recyclable, shouldn't recycling facilities accept the product for recycling? As the court writes, "Colgate does not explain why a reasonable consumer would not be equally likely to be misled by its claims of recyclability, regardless of the reason for rejecting the Products, where the Products are (allegedly) uniformly rejected by recycling facilities in California and the United States.
The court also didn't think that Colgate-Palmolive's disclosures - including statements on the packaging such as "learn more" - changed how consumers are likely to interpret the company's recyclable claims. The court wrote that, "courts are generally reluctant to charge a reasonable consumer with the obligation of reviewing product websites or other written product materials before purchasing the product."
The court also pointed to the FTC's Guides for the Use of Environmental Marketing Claims as further support for its conclusion. Specifically, the Green Guides provide that, "If any component significantly limits the ability 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."
There's no doubt that companies are working hard to improve their environmental footprints by developing environmentally preferable products. The problem is that sometimes science and technology gets far ahead of what our recycling systems can handle. If you're going to make a change to a product that is intended to lessen that product's negative impact on the environment, it's important to consider whether it actually will have that impact. If it doesn't, then it's not really an environmental benefit - and you won't be able to advertise that so-called improvement.
Della v. Colgate-Palmolive Company, 2024 WL 457798 (N.D. Cal. 2024).
"courts are generally reluctant to charge a reasonable consumer with the obligation of reviewing product websites or other written product materials before purchasing the product"
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COLGATE-PALMOLIVE COMPANY 
