“non-toxic” plausibly means “not harmful to people, animals, or environment”

In re S.C. Johnson & Son, Inc. Windex Non-Toxic Litig.,
2021 WL 3191733, No. 20-cv-03184-HSG (N.D. Cal. Jul. 28, 2021)

Plaintiffs alleged that SCJ used false and misleading labels
that certain of its Windex products have a “non-toxic formula.” The products
allegedly contain ingredients that are toxic to humans, animals, and/or the
environment: they can allegedly cause “severe ocular irritation,” “skin and eye
irritation,” “damage to certain plants and seedlings,” “conjunctivitis and
corneal damage,” “headaches,” “breathing difficulties,” “erythema,
desquamation, and drying of the skin,” and “fissuring.” They brought the usual
California claims.

The court determined that the products were similar enough
to be grouped together despite having some varying ingredients, and that
plaintiffs had standing for injunctive relief. Factual issues about what counts
as toxic—and whether, as the FTC says, a product could be labeled non-toxic if
it had small amounts of an ingredient at a level that is not harmful to humans
or the environment—were not for the motion to dismiss stage.

The key question is whether a reasonable consumer would be
misled by the term “non-toxic” into thinking that the Products “[do] not pose
any risks to humans or the environment, including household pets.” SCJ relied
on a definition of “toxic” from the Merriam-Webster Dictionary, and contends
that it “means that a substance is ‘poisonous’ or ‘capable of causing death or
serious debilitation.’ ” And the FTC’s Green Guides explain that:

[T]here is no allowance for “de minimis” or “trace”
toxicity. However, a non-toxic product could contain a toxic substance at a
level that is not harmful to humans or the environment. For example, apple
seeds contain cyanide. Although a marketer could not claim that cyanide itself
is non-toxic, the amount in an apple is so low that it is not harmful to humans
or the environment, and so the marketer could claim the apple is non-toxic.

Plaintiffs responded that even the Merriam-Webster
Dictionary offers an alternative definition of toxic, defined as “harmful.”
They argued that a reasonable consumer could believe that “non-toxic” means
“not posing a risk of harm.” And the Green Guides say:

A non-toxic claim likely conveys that a product, package, or
service is non-toxic both for humans and for the environment generally.
Therefore, marketers making non-toxic claims should have competent and reliable
scientific evidence that the product, package, or service is non-toxic for
humans and for the environment or should clearly and prominently qualify their
claims to avoid deception.

As it happens, the NAD evaluated one of the products at issue
in this case—Windex Vinegar Non-Toxic Formula Product—and recommended that SCJ
“discontinue the claim ‘non-toxic’ on the package.” It found that non-toxic, as
used on the product, “reasonably conveys a message that the product will not
harm people (including small children), common pets, or the environment.”
“Importantly, NAD noted that a reasonable consumer’s understanding of the
concept of ‘will not harm’ is not limited to death, but also various types of
temporary physical illness, such as vomiting, rash, and gastrointestinal
upset.” SCJ appealed to the National Advertising Review Board, which upheld the
decision and “express[ed] concern that an unqualified non-toxic claim will lead
reasonable consumers to conclude not only that a misused cleaning product does
not pose a risk of death or serious consequences, but also that product misuse
poses no health risks, even those that are not severe or are more transient in
nature.”

Likewise, the Environmental Working Group  considered two of the products at issue in
this case—Windex Ammonia-Free Non-Toxic Formula and Windex Original Non-Toxic
Formula—and determined that the former was “[c]orrosive” and “[m]ay contain
ingredients with potential for respiratory effects; chronic aquatic toxicity;
[and] developmental/endocrine/reproductive effects” while the latter “[m]ay
contain ingredients with potential for acute aquatic toxicity; respiratory
effects; skin irritation/allergies/damage.” Thus, this wasn’t plaintiffs’
idiosyncratic “personal understanding of non-toxic.”

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