The U.S. District Court for the Southern District of New York has dismissed, without prejudice, a proposed class action complaint against Tom’s of Maine, Inc, (“Tom’s”) and its majority shareholder Colgate-Palmolive (“Colgate”), which alleged Tom’s Wicked Fresh! Mouthwash products contained per- and polyfluoroalkyl substances commonly referred to as “PFAS.”

In Esquibel v. Colgate-Palmolive et al., plaintiffs alleged a “price premium” theory of injury, claiming they would not have purchased the subject product, or would have at least paid less for it, had they known the mouthwash allegedly contained PFAS. Plaintiffs also brought claims under alleged violations of California's False Advertising Law, California's Unfair Competition Law, California's Consumer Legal Remedies Act, the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS §505/1, et seq.), breach of express warranty, fraud, constructive fraud, and unjust enrichment.

Although Defendants moved pre answer to dismiss on lack of subject matter jurisdiction, failure to state a cause of action, failure to meet the heightened pleading standard for fraud, and under the primary jurisdiction doctrine, the Court limited its decision to Article III standing. Specifically, Judge Laura Taylor Swain held plaintiffs failed to plead an injury in fact because the Complaint did not plausibly allege plaintiffs actually purchased PFAS-containing products. The court also granted plaintiffs leave to amend the complaint.

Decision Focused on Whether Plaintiffs Plausibly Alleged Exposure to PFAS

No physical injuries were alleged on behalf of plaintiffs. Instead, plaintiffs alleged that any amount of PFAS exposure was hazardous and that plaintiffs either would not have purchased the mouthwash had they known of the alleged PFAS presence or would have paid less for it. Plaintiffs’ claims were based on their own “commissioned third party testing” purportedly preformed within “accepted industry standards.”

The court held plaintiffs’ testing allegations were impermissibly vague for the failure to allege plaintiffs “actually purchased” the tested products or “even plead facts indicating how many units of the Product were tested, where those units were acquired, where the test took place, or what entity performed the test.” Due to these deficiencies, the court could not “conclude that the presence of PFAS in bottles that Plaintiffs purchased was anything more than a sheer possibility." (citations omitted). The court stressed that while plaintiffs were not required to prove their claims of PFAS-contamination, they still failed to plausibly allege the presence of PFAS due to the complaint’s limited information.

While this decision does not provide a precedent on the heavily litigated PFAS issues of fraud, breach of warranty, and unjust enrichment, it does signal the willingness of the Southern District of New York to hold plaintiffs accountable in pleading their specific testing methods and results in order to plausibly allege actual exposure to PFAS-containing products. Indeed, the decision is similar to the recent S.D.N.Y decision in Hicks et al. v. L'Oreal U.S.A., Inc., where the court also disposed of a PFAS claim on the same basis of lack of standing.