Bermudez v. Colgate-Palmolive Company

Background

Felix Bermudez, Kimberly Richardson, Terri Corprew, Robert Sumrell, Hector Gonzalez, Harold Nyanjom, and Kellie Nyanjom brought a proposed class action against Colgate-Palmolive Company. They alleged that Colgate marketed two charcoal toothpastes—Colgate Total Whitening + Charcoal Toothpaste and Colgate Optic White with Charcoal Teeth Whitening Toothpaste—as safe for tooth enamel and beneficial for mouth health. The challenged statements included “whole mouth health,” “total mouth health,” and “enamel safe.”

The plaintiffs alleged that charcoal made the products unsafe and unable to provide the advertised benefits. They relied mainly on a 2017 Journal of the American Dental Association article, a 2019 British Dental Journal article, and a 2015 Academy of General Dentistry study. The plaintiffs said they relied on Colgate’s safety claims when purchasing the products and paid a price premium because of those claims.

The First Amended Complaint asserted 12 claims: breach of express warranty, unjust enrichment, fraud, claims under New York consumer-protection statutes, claims under California consumer-protection statutes, claims under Illinois consumer-protection statutes, a Connecticut consumer-protection claim, and a Kansas consumer-protection claim. In their opposition to dismissal, the plaintiffs withdrew their Illinois Uniform Deceptive Trade Practices Act claim, Count 10. The court treated that claim as withdrawn and abandoned.

Motion to Dismiss Standard

Colgate moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to state a legally plausible claim. The court accepted well-pleaded factual allegations as true and considered materials referenced in the complaint, including the scientific articles on which the plaintiffs relied. Fraud claims also had to satisfy Rule 9(b), which requires particular details about the alleged false statements and facts supporting a strong inference of fraudulent intent.

Why the Court Dismissed the Claims

The court concluded that the First Amended Complaint did not plausibly allege a false, misleading, or deceptive act. It found that the complaint did not identify the nature, preparation method, or particle-size distribution of the charcoal in Colgate’s products. Without those facts, the court could not reasonably infer that the products contained enough or the right kind of charcoal to make them unsafe or incapable of providing the advertised benefits.

The court also reviewed the scientific materials cited in the complaint and found that they did not support the plaintiffs’ allegations. The 2017 article did not establish that charcoal in Colgate’s toothpastes was unsafe or made fluoride ineffective. The 2019 article stated that the benefits of charcoal toothpaste had not been disproved, noted a lack of scientific data on its effectiveness, and explained that abrasiveness depended on characteristics the complaint did not identify. The 2015 study examined activated charcoal mixed with water rather than Colgate’s charcoal toothpastes and stated that it did not prove activated charcoal was unsuitable for use in the mouth.

Because all of the state statutory claims required a misleading or deceptive act, the court dismissed those claims. The court dismissed the fraud claim because the complaint did not allege a false or misleading act and, independently, did not plead facts creating a strong inference that Colgate acted with fraudulent intent. The court found that general allegations about Colgate’s profit motive, publicly available articles, and the absence of an American Dental Association seal were insufficient.

The express-warranty claim failed for the same reason: the complaint did not plausibly allege that Colgate’s product statements were false or misleading when made. The unjust-enrichment claim also failed on the same basis and because it duplicated the plaintiffs’ warranty, fraud, and consumer-protection claims. The court explained that an unjust-enrichment claim cannot proceed as an alternative theory when it relies on the same conduct and allegations as other claims.

Leave to Amend and Disposition

The plaintiffs requested leave to amend in a one-sentence footnote but did not identify additional facts that could cure the deficiencies. The court also noted that the plaintiffs had already amended once after receiving Colgate’s pre-motion letter and after the decision in a similar charcoal-toothpaste case. It concluded that another amendment would be futile.

Judge Rochon granted Colgate’s motion to dismiss. The complaint was dismissed with prejudice, and the clerk was directed to close the case.