California Court Cites FTC Green Guides, Allowing Plaintiff’s Challenge of Colgate Toothpaste Tubes “Recyclable” Claims to Proceed

By Ellen T. Berge, Shahin O. Rothermel & Ellis McKennie

Is a product recyclable if it is made of recyclable materials? Or is it recyclable when it can be recycled by waste management facilities? Last month, the United States District Court for the Northern District of California attempted to tackle these questions in response to a motion to dismiss in Della v. Colgate.

The plaintiff alleged that Colgate-Palmolive Company engaged in false and misleading advertising claims about the recyclability of its toothpaste tubes with claims like “First of Its Kind Recyclable Tube” and images of the universal recycling symbol. The plaintiffs claimed these statements were misleading because the products cannot be recycled at most waste management facilities. Colgate argued that since the tube is made from recyclable material—specifically a material that can be recycled at most facilities—the “recyclable” claim was not misleading.

What Is Recyclable Material?

The products at issue are toothpaste tubes made from high-density polyethylene (HDPE #2). HDPE #2 plastic is different from the material typically used to make toothpaste tubes, which most waste management facilities ban from recycling. HDPE #2 can be processed by most recycling facilities, but the plaintiff argued that, while Colgate’s HDPE #2 tubes are theoretically recyclable, they are often rejected from recycling streams because of their shape and likelihood of contamination.

The court agreed and held that the plaintiff adequately alleged that Colgate tubes cannot be recycled at community facilities because they are indistinguishable from typical toothpaste tubes, making it impossible to separate the products for recycling, and because they pose a high risk of contamination to the recycling stream due to leftover toothpaste in the tube. Thus, the court held that the plaintiffs had successfully pleaded that the reasonable consumer could be deceived by the claim “recyclable” on these products.

In reaching this conclusion, the court cited Smith v. Keurig Green Mountain, Inc., where the plaintiff alleged the recyclability claims of Keurig were misleading because their K-Cup coffee pods could not be recycled in municipal recycling facilities, even though the product was made of plastic materials. There, the court held that the Keurig cups were the wrong shape for municipal facilities, and they carried a risk of contamination. As a result, the court found Keurig’s recyclability claims potentially misleading to a reasonable consumer. Colgate argued that reasonable consumers could not be misled by “recyclable” claims because their website gave more detail about the recyclability of the tubes. Colgate’s packaging contained statements instructing consumers to “learn more” about the product on the company’s website. However, the court found that consumers should not be required to do any additional research when evaluating a claim. Thus, the court found Colgate’s website disclaimers to be unpersuasive and that the plaintiffs had adequately pled that the disclosures were inadequate.

The Federal Trade Commission’s Green Guides

The plaintiff alleged that the “recyclable” claims also violated the FTC’s Green Guides, which “only permit marketers to make unqualified recyclable claims ‘[w]hen recycling facilities are available to a substantial majority of consumers or communities where the item is sold.'” The term “substantial majority,” as used in this context, means at least 60%.

Colgate disagreed, arguing that its claims complied with FTC Green Guides because the HDPE #2 plastic is recyclable in facilities available to 87% of consumers.

The court disagreed and held that although the material is often accepted as recyclable, the product itself was “uniformly rejected” by recycling facilities because of its shape and contamination risk. Therefore, it held the plaintiffs adequately alleged that the products are misleading under the Green Guides.

The decision indicates that marketers making “recyclable” claims must not only look to the material itself but also evaluate whether the product itself is recyclable in facilities available to consumers.

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