non-toxic plausibly means nonharmful, but harmfulness still needs adequate pleading

Rivera v. S.C. Johnson & Son, Inc., 2021 WL 4392300, No.
20-CV-3588 (RA) (S.D.N.Y. Sept. 24, 2021)

Plaintiffs alleged that S.C. Johnson’s labeling of its
Windex cleaning products as “Non-Toxic” was misleading in violation of NY’s GBL
because those products contain ingredients that may be harmful to humans, pets,
or the environment. The court rejected many of S.C. Johnson’s arguments but
ultimately found that plaintiffs failed to allege that the products were
harmful.

Plaintiffs alleged that the NAD had found that “the term
‘non-toxic’ as used by the Products signifies to reasonable consumers” that
those Products will not cause “harm,” meaning “various types of temporary
physical illness, such as vomiting, rash, and gastrointestinal upset.” The
allegedly harmful ingredients include “acetic acid, alkylbenzene sulfonate,
ammonium hydroxide, benzyl benzoate, fragrance components, isopropanolamine,
lactic acid, lauramine oxide, propylene glycol, sodium hydroxide, sodium
petroleum sulfonate, sodium xylene sulfronate, [and] 2-(hexyloxy)-ethanol.” They
alleged that the ingredients were capable of causing certain harmful effects at
their “in-use concentrations,” which weren’t disclosed on the products, so the
allegations were based on information and belief.

Plaintiffs plausibly alleged that a reasonable consumer
might share their understanding of the meaning of “non-toxic.”  S.C. Johnson argued that no reasonable
consumer would believe that that “a non-toxic label implies that a product
[neither] (1) pose[s] any risk of harm to humans, animals, or the environment,
[nor] (2) contain[s] potentially harmful and toxic compounds.” “Although the
Court finds that argument appealing from a common-sense perspective, it cannot
determine as a matter of law that no reasonable consumer would share
Plaintiffs’ understanding of the word toxic.” Plaintiffs’ allegations weren’t
implausible or inconsistent with dictionary definitions; even the dictionary
preferred by S.C. Johnson offered an alternative definition of “toxic” as
“extremely harsh, malicious, or harmful.” “Perhaps that is why, as alleged in
the Complaint, the Environmental Protection Agency has cautioned ‘that
marketers will rarely, if ever, be able to adequately qualify and substantiate
[ ] a claim of “non-toxic” in a manner that will be clearly understood by
consumers.’” The NAD’s holding also “undercuts the Company’s characterization
of Plaintiffs’ definition as implausible. Indeed, the independent
substantiation of a reasonable consumer’s understanding of ‘non-toxic’ helps
nudge the claims ‘across the line from conceivable to plausible.’” 

However, plaintiffs failed to allege that the products were
toxic by their own definition. “The parties appear to agree that a product
could fairly be described as non-toxic as a whole if it ‘contain[s] a toxic
substance [but only] at a level that is not harmful to humans or the
environment.’” But plaintiffs “essentially acknowledge that they do not know
the actual concentrations of the ingredients,” and don’t explain how they came
to have their beliefs about the in-use concentrations.  Though S.C. Johnson doesn’t disclose
concentrations/percentages, and though Twiqbal doesn’t prevent
information/belief pleading when facts are peculiarly within the possession and
control of the defendant, plaintiffs had additional options.

First, even if the precise specifications were secret, “information
about the effect of those ingredients in their current concentrations is not.”
These widely-sold products could have generated publicly available evidence of
harm to “people …, common pets, or the environment,” and plaintiffs didn’t
cite their own experiences or even internet reviews. Second, they could have
tested the products. Plaintiffs need not always provide an expert to conduct
sophisticated chemical analysis before bringing suit. “But the fact that the
Products can be purchased at stores as ubiquitous as Target and tested suggests
that basic facts about their chemical composition is not something exclusively
in the control of Defendant. At the very least, the Complaint could contain
allegations as to why such testing would not have been possible here—it does
not.” And finally, consultation with experts in the field might have been able
to provide “even minimal support” for their bald assertion that “the
ingredients’ likely concentrations or percentages by weight” are sufficient to
cause harm.

The court did find that plaintiffs’ price premium theory
sufficed to allege harm, but that they lacked standing to seek injunctive
relief. It was not enough to allege they’d buy in the future only “if assured
[they] did not contain components which were toxic and had the harsh physical
and environmental effects they did.” However, they did have standing to
challenge non-toxic labels on products they didn’t buy because they were sufficiently
similar to those products that they did purchase and because the “deceptive
non-toxic marketing is identical on each product.” The products need not be
nearly identical; rather, the claims about falsity have to raise a “set of
concerns [that are] nearly identical.” That was so.

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