Housey v. Procter & Gamble Company

Background

Belinda Housey brought a proposed class action against Procter & Gamble Company concerning three charcoal-containing Crest toothpastes. She alleged that the products’ packaging and website made false or deceptive statements about “enamel safe whitening,” “healthier gums,” and “gently clean[]” benefits. Housey purchased the Crest 3D White Whitening Toothpaste with Charcoal. She alleged that she relied on the packaging, paid a price premium, and later learned that the toothpaste was abrading her enamel and was unsafe.

Housey asserted claims under New York consumer-protection laws, other states’ consumer-fraud laws, breach of express warranty, and intentional misrepresentation and fraud. Procter & Gamble moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not allege enough facts to state a legally sufficient claim.

Court’s analysis

The court first limited its review to the product Housey purchased and the statements she actually saw. Housey admitted that she had not seen Procter & Gamble’s website before buying the toothpaste, so the court concluded that she could not claim injury from relying on website statements. The court also noted that Housey identified three products but purchased only one.

The court held that Housey had not plausibly alleged a deceptive statement. Her theory was that the presence of charcoal, regardless of its amount or composition, made the toothpaste unsafe and unable to provide the advertised benefits. But she did not know the amount or type of charcoal in the product. The court found that the three articles Housey relied on did not establish that this Crest toothpaste harmed enamel or failed to provide “enamel safe whitening.” One article found insufficient scientific data about charcoal dentifrices but did not establish that the product was unsafe; another said abrasivity depended on the charcoal’s nature, preparation, and particle size; and the third concerned brushing with charcoal mixed with water rather than using charcoal toothpaste.

The court rejected Housey’s argument that it could not consider the articles at the dismissal stage. Because Housey relied on the articles to support her allegations, the court concluded that it could examine whether those materials supported a plausible claim. The court distinguished another charcoal-toothpaste case because, unlike that case, Housey did not submit evidence about the specific Crest product or evidence that charcoal prevented the toothpaste as a whole from providing its advertised benefit.

The court also found that Housey had not adequately alleged injury. Her allegation that the toothpaste abraded her enamel was conclusory: she did not explain how or when she discovered the abrasion or describe its nature or extent. Her price-premium theory also failed. The court found that comparing the product with a different Crest toothpaste was not an appropriate comparison and noted counsel’s statement that the variations in the Crest 3D White line sold for the same price. The court further held that Housey could not claim that charcoal prevented fluoride from working, because federal regulation preempted claims about fluoride’s safety or effectiveness in these circumstances.

Disposition

The court concluded that Housey failed to plead a deceptive act and failed to plead injury, independently defeating her consumer-protection, warranty, and fraud claims. Because she could not state a claim concerning the product she purchased, the court also held that she could not pursue claims involving the other products. The court did not decide whether Housey’s warranty notice was timely because that claim failed on other grounds.

Judge Naomi Reice Buchwald granted Procter & Gamble’s motion to dismiss and dismissed the complaint with prejudice. The Clerk was directed to close the case.