SARAH PATELLOS, et al. v. HELLO PRODUCTS, LLC
19 Civ. 9577 (PAE)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 4, 2021
PAUL A. ENGELMAYER, District Judge
OPINION & ORDER
This putative class action involves claims of misleading advertising for charcoal-based toothpastes. Sarah Patellos and Eric Fishon, New York residents, bring a putative class action against defendant Hello Products, LLC (“Hello“), a Delaware limited liability company which makes such toothpastes. Plaintiffs allege that Hello‘s labels and web advertisements, which claim that its toothpastes are safe, effective, and promote whitening, are misleading because charcoal, when used in toothpastes, dangerously abrades enamel and does not provide the oral hygienic benefits Hello promises. Plaintiffs bring claims of: (1) breach of express warranty under
Pending now is Hello‘s motion to dismiss plaintiffs’ Second Amended Complaint (“SAC“). For the reasons that follow, the Court denies the motion to dismiss the breach of
A. Factual Background1
Hello is a wholly owned subsidiary of Colgate Palmolive Company. SAC ¶ 32. Since 2015, Hello has packaged, marketed, distributed, and sold oral care products, including a number of toothpastes that contain activated charcoal (“charcoal toothpastes“).2 Id. ¶¶ 3, 61. Some of these toothpastes also contain fluoride. Id.
Hello promotes and advertises these charcoal toothpastes by emphasizing that they are a safe and effective tool to whiten teeth, remove stains, and freshen breath, among other attributes. Id. ¶ 2. In particular, the packaging for the various charcoal-toothpaste products contains the following statements: “epic whitening“; “whitens helps remove plaque with regular brushing“; “noticeably whiter teeth“; “whitens naturally“; “removes plaque“; “freshens breath“; “slays dragon breath“; and “mind blowing freshness.” SAC ¶¶ 64-66. Similarly, on its website, Hello claims that, as to the charcoal ingredient in its fluoride-free charcoal toothpastes: “our activated charcoal toothpaste whitens naturally and gently without peroxide and is safe for everyday use“;
Patellos read Hello‘s claims regarding its charcoal toothpaste in advertisements on Amazon.com and on the toothpaste packaging itself. Id. ¶ 25. On May 17, 2019, relying on the advertisement‘s representations that the toothpaste would “naturally whiten her teeth” and was “safer and less damaging than other whitening toothpastes,” she ordered Hello‘s “charcoal epic whitening fluoride-free toothpaste” through Amazon.com. Id. Patellos claims to have particularly relied on the representations that the activated-charcoal ingredient had special properties that made it worthwhile to pay a price premium for Hello‘s toothpaste. Id. These included that the toothpaste “would naturally whiten teeth, lift stains, remove toxins, and that it would be safe and gentle enough for daily use.” Id. Patellos used the toothpaste for a period of time, but it did not whiten her teeth as expected. She also discovered that rather than “naturally whitening her teeth,” the charcoal toothpaste “was actually abrading her enamel, and had not been proven safe for use.” Id.
On February 22, 2019, Fishon, via the Target website, bought Hello‘s “activated charcoal epic whitening fluoride toothpaste,” “activated charcoal epic whitening fluoride-free toothpaste,” and “activated charcoal + hemp seed oil epic whitening fluoride-free toothpaste.” Id. ¶ 27. A few months later, in spring 2019, Fishon bought additional Hello charcoal-toothpaste products through Amazon.com. Id. Before the purchases, he had read Hello‘s advertising claims on the
B. Procedural History
On October 16, 2019, plaintiffs filed the original complaint, Dkt. 1, and, on February 28, 2020, the First Amended Complaint (“FAC“). Dkt. 6. On June 26, 2020, Hello moved to dismiss. Dkt. 18. On June 29, 2020, the Court issued an order, which, inter alia, gave plaintiffs until July 17, 2020, to file any amended complaint in response to the motion to dismiss. Dkt. 20.
On July 17, 2020, plaintiffs filed the SAC. Dkt. 21. It pleads that Hello‘s claims about the benefits of its charcoal toothpastes are false, id. ¶ 73, and that consumer experience and dental experts indicate that long-term use of Hello‘s charcoal toothpaste “wears down [a tooth‘s] enamel” and can cause permanent damage and a yellow appearance as a result of long-term enamel erosion. Id. ¶ 85. It brings seven claims: (1) breach of express warranty under
II. Legal Standards Governing Motions to Dismiss
To survive a motion to dismiss under
III. Discussion
A. Preemption Challenge to Fluoride-Related Claims
Hello argues that plaintiffs’ challenges to its claims about the safety and efficacy of the fluoride in their toothpaste products are expressly preempted by federal law. Under the Food Drug & Cosmetics Act, Hello notes, “[w]here the FDA has issued an applicable monograph, the
Hello‘s preemption argument appears now to be academic because plaintiffs, in their opposition, agree that claims as to the safety and efficacy of the fluoride in Hello‘s products would be preempted. Plaintiffs instead deny having brought such claims. That is not clear from the face of the SAC. It, for example, notes the potential interaction of fluoride and charcoal in Hello‘s products, see, e.g., SAC ¶ 98 (“[T]he fluoride in the Fluoride Charcoal Toothpastes may be impacted or inactivated by the charcoal.“). Regardless, plaintiffs now explicitly renounce any claim “challenging the safety or efficacy of fluoride.” Pl. Opp‘n at 18. They clarify that “the only way” in which their claims touch on fluoride “is with respect to the possible adverse effects (or interference) of charcoal on the efficacy of fluoride in the fluoride Charcoal Toothpastes“; they state as a factual point that charcoal, “when used in a fluoride toothpaste, may render the fluoride ‘either chemically inert or minimally effective.‘” Id. at 18, 20 (quoting SAC ¶ 97).
Because plaintiffs have clearly renounced any claims related to fluoride in Hello‘s products, either as a stand-alone ingredient or based on its interaction with other ingredients, there is no live dispute on this point. Nevertheless, for avoidance of doubt, the Court dismisses as preempted, and as abandoned, any claims in the SAC that might be construed as relating to the safety or efficacy of fluoride in Hello‘s products, including based on the interaction of fluoride with other ingredients. See Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08 Civ. 442 (TPG), 2014 WL 4723299, at *7 (S.D.N.Y. Sept. 23, 2014) (“At the motion to dismiss stage, where review is limited to the pleadings, a plaintiff abandons a claim by failing to address the defendant‘s arguments in support of dismissing that claim.“).
B. Challenges to the Particularity of Plaintiffs’ Pleadings
Hello first argues that the SAC has not pled its claims with requisite particularity.
1. Fraud-Based Claims
Hello argues that Counts One (breach of express warranty), Two (breach of implied warranty), Five (negligent misrepresentation), Six (intentional misrepresentation), and Seven (unjust enrichment) sound in fraud and thus must satisfy the heightened pleading standards of
For the reasons below, the Court finds that the SAC‘s allegations of false and fraudulent statements by Hello as to its toothpaste products satisfy
As to the first
As to the second
As to the third
As to the fourth requirement, the SAC adequately pleads why these statements are false. It details why Hello‘s charcoal-toothpaste products are, purportedly, not safe for enamel, citing numerous academic sources finding claims to this effect false. See id. ¶¶ 8 (citing British Dental Journal as expressing concern that charcoal toothpastes could “cause harm to oral health, structures, and aesthetics“) 11 (“dentifrice is known to be abrasive to enamel and the gums“), 85 (citing Dr. Ada Cooper, spokesperson for American Dental Association, stating that “long-term use of the Hello Charcoal Toothpastes could potentially result in a darkened and yellow tooth appearance. This is because, when teeth are regularly brushed with highly abrasive substances such as charcoal, the enamel can wear down and cause the tooth‘s dull, internal dentin to show through.“), 90 (“Multiple scientific studies have noted [charcoal‘s] abrasiveness presents a risk to enamel and gingiva[.]“), 120 (citing articles on how charcoal can hurt enamel). To the same end, the SAC also details plaintiffs’ experiences suggesting that the products proved unsafe for enamel. See, e.g., id. ¶ 25 (“rather than ‘naturally whitening’ her teeth, the product was actually
In pursuing dismissal, Hello argues that plaintiffs fail to allege the “how” of the fraud because Patellos did not plead how she determined that the toothpaste abraded her enamel. Def. Mem. at 6. It is correct that the SAC does not specifically state how Patellos determined that her enamel was being abraded—whether, for example, by touching her teeth, visually examining them, or obtaining the perspective of a dentist. But the SAC compensates for this point by citing
The Court thus finds that the SAC satisfies
2. Non-Fraud Claims Based on New York GBL
Plaintiffs bring two claims under the New York GBL—Counts Three (deceptive acts and practices) and Four (false advertising). Hello does not argue that these are subject to
That is wrong.
Hello next argues that the SAC‘s breach of express warranty claims require dismissal because Patellos and Fishon failed to provide it timely notice. Section 2-607(3) of the
As to Patellos, the SAC alleges timely notice. As alleged, she purchased Hello‘s charcoal-toothpaste product in May 2019. SAC ¶ 25. The SAC states that, “after a period of use Ms. Patellos[] [discovered that her] expectations” were not met. Id.; see id. (“[R]ather than ‘naturally whitening’ her teeth, the product was actually abrading her enamel, and had not been proven safe for use.“). Patellos first put Hello on notice of the defect she claimed in its charcoal-based toothpaste products, and thus of its alleged breach of warranty, giving it an opportunity to cure, when she and Fishon filed their original putative class-action Complaint on October 16, 2019. The original Complaint was served on Hello by registered mail, which received it on November 19, 2019. Id. ¶ 177.
“[T]he sufficiency and timeliness of the notice is generally a question for the jury.” Hubbard v. Gen. Motors Corp., No. 95 Civ. 4362, 1996 WL 274018, at *4 (S.D.N.Y. May 22, 1996). Here, the SAC adequately pleads that notice seven months after purchase was reasonably timely, insofar as the defect that Patellos claims was one that, by its nature, became apparent not immediately but over time. Cf. Archstone v. Tocci Bldg. Corp. of N.J., Inc., 959 N.Y.S.2d 497, 499 (2012) (holding notice of alleged breach of warranty more than two years after the delivery of wall panels was unreasonable, because where the alleged defect is in connection with qualities
The question is closer as to Fishon. He first bought one of Hello‘s charcoal toothpastes on February 22, 2019, and then bought additional similar products from Hello later that spring. See SAC ¶ 27. The SAC alleges that “after a period of use, Mr. Fishon found that the products fell short of his expectations.” Id. As pled, Fishon first put Hello on notice of the defects he alleges in Hello‘s charcoal-based toothpaste products, and thus of its alleged breach of warranty, when he (with Patellos) filed the original Complaint and served it on Hello. Id. ¶ 177. Thus, it took Fishon three months longer to provide notice to Hello. At summary judgment or trial, Hello will be at liberty to argue that Fishon‘s notice (and Patellos‘s) were untimely. But, because the timeliness of notice is generally a question of fact for the jury, Hubbard, 1996 WL 274018, at *4, the Court will not dismiss Fishon‘s claim on this ground.
Hello separately challenges whether the form of plaintiffs’ notice, the initial complaint filed in this litigation, was proper.4 Hello argues that notice cannot take the form of a complaint. Hello, however, does not point to authority categorically so holding. And a district court in this Circuit has upheld this form of notice. In Tomasino v. Estee Lauder Cos., the court held that a plaintiff was not “required to provide pre-suit notice of the alleged warranty breaches,” as “New York cases applying
Hello urges the Court to reject Tomasino, on the policy ground that allowing a complaint to serve as notice “would ‘impede the purposes of the notice requirement.‘” Def. Mem. at 7-8 (quoting 4 Anderson U.C.C. § 2-607:21 (3d. ed.)). In some circumstances, service that does not occur until the filing of a lawsuit will prove delinquent. But the full quote from the treatise on which Hello relies for this policy point undermines its notion that, as a categorical matter, notice by complaint is forbidden. It states:
Mere service of a complaint upon the seller is not sufficient to comply with the notice requirement of U.C.C. § 2-607(3)(a). A finding that service of a complaint is sufficient notice would impede the purposes of the notice requirement, inasmuch as service often occurs months or even years after the buyer is injured. Such a period of time prevents a seller from minimizing his damages.
4 Anderson U.C.C. § 2-607:21 (emphasis added). As the treatise notes, what is key is not the form of the notice, but its timing—that notice be given promptly after the injury occurs (or, as here, is apparent). And because a legal action generally need not be filed soon after an injury, the filing of a complaint often may not constitute proper notice. The treatise, however, does not advocate, let alone cite case authority for, a hard and fast rule under which a complaint filed promptly after discovery of injury could not supply notice.
Here, at least as pled, Patellos filed her first complaint sufficiently promptly after discovering the defect in the toothpaste. See Tomasino, 44 F. Supp. 3d at 260 (“‘The purpose of the notice requirement is not to inform the seller of his own act, but to reveal to him that the buyer chooses to assert the act as a breach and seek a legal remedy therefore,’ so that the seller need not bear the hardship of ‘allowing a buyer at any time within the period of the Statute of Limitations to assert that the goods are or were defective though no objection was made when
D. Challenges Based on Plaintiffs’ Lack of Privity with Hello
1. Breach of Implied Warranty
Hello next argues that plaintiffs’ breach of implied warranty claim fails because plaintiffs were not, as pled, in privity with Hello, as required under New York law. Hello is correct.
Because plaintiffs do not claim to have bought the toothpastes from Hello directly, but instead from the Target and Amazon websites, to adequately pursue the implied warranty claim, they would need to plead privity between themselves and Hello. See Marshall v. Hyundai Motor Am., 51 F. Supp. 3d 451, 469 (S.D.N.Y. 2014) (explaining that under New York law, “a plaintiff claiming rights as a third-party beneficiary must demonstrate: (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost” (quotations omitted)). The sole claim that the SAC makes as to this requirement, however, is conclusory. It is that plaintiffs “were in direct privity with Defendant and/or its agents, or were intended third-party beneficiaries of the warranties breached herein [] to the extent required by law.” SAC ¶ 172; see Pl. Opp‘n at 13. That allegation is, however, insufficient. It is devoid of facts indicating that the contracts between Hello and the two online sellers of its toothpaste at issue, Amazon and Target, were intended to benefit the plaintiffs. See, e.g., Catalano v. BMW of N. Am., LLC, 167 F. Supp. 3d 540, 557 (S.D.N.Y. 2016) (“[The plaintiff] presents no allegations, other than naked assertions, to show that any contracts between BMW and dealerships were
2. Negligent Misrepresentation
The SAC fails for similar reasons to state a claim for negligent misrepresentation. Under New York law, a negligent misrepresentation claim requires a showing that the defendant had a duty, as the result of a special, privity-like relationship, to give the plaintiff correct information. See Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 584 (2d Cir. 2005). A
relationship is considered “so close as to approach that of privity” when the following criteria are met: 1) the defendant makes a statement with the awareness that the statement was to be used for a particular purpose; 2) a known party or parties rely on this statement in furtherance of that purpose; and 3) there is some conduct by the defendant linking it to the party or parties and evincing defendant‘s understanding of their reliance.
Id. (quoting Ossining Union Free Sch. Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 417 (1989). “In contrast, where the statement at issue is directed at a ‘faceless of unresolved class or persons,’ no duty of care arises.” Id. (quoting White v. Guarente, 43 N.Y.2d 356, 361 (1977)). And, “in the commercial context, a closer degree of trust between the parties than that of the ordinary buyer and seller is required to establish the ‘existence of a special relationship capable of giving rise to an exceptional duty regarding commercial speech and justifiable reliance on such speech.‘” Izquierdo v. Mondelez Int‘l, Inc., No. 16 Civ. 4697 (CM), 2016 WL 6459832, at *8 (S.D.N.Y. Oct. 26, 2016) (quoting Kimmell v. Schaefer, 89 N.Y.2d 257, 264 (1996)) (cleaned up).
[L]iability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified. Professionals, . . . by virtue of their training and expertise, may have special relationships of confidence and trust with their clients,
and in certain situations [New York State Courts] have imposed liability for negligent misrepresentation when they have failed to speak with care.
Here, plaintiffs argue that there was privity between them and Hello because Hello hired a research scientist, Connie Gregson, and “held out her ‘unique expertise‘” to the public, thereby “creat[ing] the requisite special relationship” between it and toothpaste purchasers. Pl. Opp‘n at 14 (quoting SAC ¶ 222). As the SAC pleads, Hello published a short article by Gregson on its website titled, “why add charcoal to toothpaste?,” and described her there as the “friendly head of r+d at hello products” who has “more degrees than a thermometer,” and who “created the formulations of [Hello‘s] products.” SAC ¶¶ 65, 70. The SAC alleges that Hello‘s website “touted” Gregson‘s credentials and “induced consumers’ trust and reliance” on its claims about “the safety, function, and attributes of charcoal for use in oral care.” Id. ¶¶ 10, 122. Plaintiffs liken their claims to those upheld in Hughes v. Ester C Co., 960 F. Supp. 2d 439 (E.D.N.Y. 2013), involving claims against the manufacturers of a vitamin. Pl. Opp‘n at 15.
This case in fact is afield from Hughes, for the reasons Judge Roman recognized in dismissing a negligent misrepresentation claim in Eidelman v. Sun Products Corp., No. 16 Civ. 3914 (NSR), 2017 WL 4277187, at *5 (S.D.N.Y. Sept. 25, 2017). Hughes, as Judge Roman noted, “relied on the volume and content of the representations made by the defendant-manufacturer, taken together,” in holding that the plaintiff-consumer had plausibly alleged a special relationship. Id. at *5. The plaintiff in Hughes had alleged that the defendant‘s website contained a section entitled “Ask an Expert,” which represented that “the expert believed the tablet was backed by good clinical research and that the company was completely committed to clinical studies.” Id. (quoting Hughes, 960 F. Supp. 2d at 475) (cleaned up). Here, however, the SAC does not point to any claims by Hello about clinical research, including by Ms. Gregson.
The Court accordingly finds that the SAC does not allege the requisite “privity-like” relationship with Hello necessary to “overcome the presumption that advertisements are generally insufficient to establish” the requisite “special relationship.” Eidelman, 2017 WL 4277187, at *5.
E. Challenges to the Unjust Enrichment Claim
Hello moves to dismiss the SAC‘s unjust enrichment claim as duplicative. That motion is meritorious.
“Unjust enrichment is not a catchall cause of action to be used when others fail. . . . An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim.” Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012). Rather, it “is available only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable obligation running from the defendant to the plaintiff.” Id. (emphasis added).
Here, plaintiffs do not distinguish their unjust enrichment claim from their other claims. The SAC states that the basis of the unjust enrichment claim is not merely “the standard false-advertising claims, but also [] the inherent unsafety and risk of the Charcoal Toothpastes.” SAC ¶ 241; id. ¶ 242 (claim is based on “Hello‘s deceptive, fraudulent and misleading labeling, advertising, marketing and sales of the Charcoal Toothpastes, its material representations and
First, they note, damages on such a claim are not measured by restitution to the victims, but may entail disgorgement of defendants’ total revenue on sales of the product. Id. But the opportunity for plaintiffs to glean a larger damage award does not distinguish “the violative conduct alleged” under the rubric of unjust enrichment from that underlying the other claims. Obeid ex rel. Gemini Real Est. Advisors LLC v. La Mack, No. 14 Civ. 6498 (LTS), 2018 WL 2059653, at *29 (S.D.N.Y. May 1, 2018) (“[W]here the violative conduct alleged is conterminous with a conventional tort or contract claim, regardless of whether the tort or contract claim is dismissed.“).
Second, plaintiffs hazily state that the unjust enrichment claim “may also be premised on a potentially distinct and additional or alternative set of facts concerning consumers’ expectation and the product‘s failure to meet them, whether it be failure or inability to perform.” SAC ¶ 241 n.135. But their other claims similarly allege Hello‘s failure to meet consumers’ expectations. See, e.g., id. ¶ 176 (“Plaintiffs and the Class members did not receive the benefit of the bargain, as the Charcoal Toothpastes did not have the promised benefits, effectiveness, safety, value or other properties as represented.“). Plaintiffs do not identify any distinguishing feature of the unjust enrichment claim warranting its survival.
The Court accordingly dismisses the unjust enrichment claim as duplicative of other claims, including claims One, Three, Four, and Six, all of which the Court has sustained.
F. Challenges to Prayer for Injunctive Relief
In addition to pursuing money damages, plaintiffs seek injunctive relief. Defendants move to dismiss for want of standing.
These harms are too conjectural to give plaintiffs standing to enjoin future sales of the products at issue. Plaintiffs’ retrospective allegations, regarding continuing concerns regarding toothpaste products they previously bought, do not logically support injunctive relief. And plaintiffs’ claims of a potential interest in future purchases do not suffice either. As this Court has recently recognized in denying a similar prayer for injunctive relief, a plaintiff who merely alleges that she “would purchase a product if re-engineered or re-marketed does not show a real
CONCLUSION
For the foregoing reasons, Court denies Hello‘s motion to dismiss the SAC‘s breach of express warranty, intentional misrepresentation/fraud, and GBL claims; and grants that motion as to the SAC‘s breach of implied warranty, negligent misrepresentation, and unjust enrichment claims. The Clerk of Court is respectfully directed to terminate the motions pending at dockets 18 and 26.
The Court schedules an initial pretrial conference for April 15, 2021 at 1:30 p.m. This conference will be held telephonically. Counsel are directed to review the Court‘s Emergency Individual Rules and Practices in Light of COVID-19, found at https://nysd.uscourts.gov/hon-paul-engelmayer, for the Court‘s procedures for telephonic conferences. Counsel are further directed to prepare a Civil Case Management Plan and joint letter in accordance with the Court‘s Individual Rules, to be submitted to the Court no later than April 12, 2021.
SO ORDERED.
Paul A. Engelmayer
United States District Judge
Dated: March 4, 2021
New York, New York