EP220. How Tom's of Maine faced a class action lawsuit for the recyclability of its toothpaste tubes

As sustainability becomes the buzzword of the beauty industry, it stands to reason that many beauty brands will use the word sustainability in good faith, but some of them will also twist it beyond all recognition for marketing purposes. Let's think about l' Oreal's claims of their packaging being more sustainable. And let's face it, what does that even mean? If it wasn't sustainable in the first place, then improving a tiny part of it doesn't make it worse. More sustainable. It simply means that they've taken one teeny tiny step closer to doing the right thing. But they're not actually doing the right thing yet. Or think of all those times when we've seen beauty brands claim that they're sustainable purely because they use natural ingredients. That claim is a load of nonsense too. And you can see that unless beauty brands truly start to understand what sustainability is and how their brands need to improve, that they might have lawsuits slapped on them. At least that's what my guest Maggie Spicer of Source Beauty ESG and I explored on the podcast last week. And if you didn't have the chance to listen to that episode, please make sure you cue it up to listen to it after this one. And Maggie shared a really interesting story last week about a class action lawsuit that's currently ongoing against toothpaste company Toms of Maine, which is owned by Colgate Palmolive. And in that lawsuit, consumers are taking action because Toms of Maine claimed that their packaging was recyclable while most recycling infrastructure simply can't actually handle the packaging. So this week on the podcast I'm going to take you with me as we have a deeper look at what is actually happening in that lawsuit. Let's get started. Hi, it's Lorraine Dallmeyer, chartered environmentalist, biologist and CEO of award winning online organic cosmetic formulation school Formula Botanica. I host the Green Beauty Conversations podcast and these are my Green Beauty opinions in which I challenge to the beauty industry's terrible track record on sustainability and share my thoughts on how we can make the beauty sector a better and more sustainable place. If you want to be the first to hear all of my latest episodes, please make sure you subscribe to this podcast. So what's happening with Toms of Maine and the class action lawsuit that it's facing? So in the autumn of 2023, a group of consumers and their law firm filed a lawsuit against Toms of Maine in Northern California for, and I quote, unlawful, unfair and deceptive business practices with respect to the advertising, marketing and sale of Colgate and Toms of Maine toothpaste labelled with the claims recyclable tube. First of its kind, recyclable tube and the universal recycling symbol. So all of this ties in with what Maggie was saying here on the podcast last week about how you can't just get into legal trouble for the words you say, but also for the symbols, the pictures, and even sometimes the colors that you might use on your product's label or other advertising. So, given that allegation, let's take a quick look at what these toothpaste tubes are made of. So the TOMS of main website talks about the tubes being made of a material that's compatible with recycling of HDPE2 plastic. So HDPE, if you don't know, stands for high density polyethylene. And it comes in both rigid, hard and soft plastic forms. So you'll find it used for milk containers, ice cream containers, for instance, the hard form, as well as freezer bags and some plastic bags. So whenever you buy a container that's made of HDPE number two, it will have that number two symbol somewhere on the packaging, typically inside the recyclability logo, you know, the one with the little arrows that goes round. Now, the rigid form of HDPE plastic is said to be recyclable, although this will obviously vary massively around the world, and it will vary massively around the waste treatment facilities available from country to country. And that's the crux of the argument here, really. Are we talking about theoretical recyclability or are we talking about practical recyclability? So this ties in with the episode I recently recorded on the difference between recyclability and circularity, as this also seems to be confusing people. You can listen back to it in episode 212 if you want to hear more. And this is the same principle. Can you actually recycle the material or is it only theoretically recyclable? And this is what the plaintiffs, that is the consumers in the lawsuit against TOMS of Maine said too. So let me read out more from the written complaint that was filed with the court. It says facilities that recycle the products, that is the toothpaste tubes, are only available to, at best a minuscule number of consumers or communities in California and the United States. Indeed, virtually all of the municipal recycling programs and materials recovery facilities, which are otherwise known as MRFs in California and the United States, reject the products because one, they are unable to effectively distinguish between the defendants, I.e. colgate's purported recyclable tubes and conventional toothpaste tubes, which can't be recycled. And two, the products cannot be fully emptied, and the leftover toothpaste contaminates the recyclable waste stream, which makes the products unrecyclable and jeopardizes the recyclability of truly recyclable materials. Whew. That was a lot to take in. So let's put this into plain English. The lawsuit basically says that recycling facilities can't tell the difference between the toms of main toothpaste tubes and other toothpaste tubes which aren't recyclable, which is a fair enough point. And they also make the claim that tiny bits of leftover toothpaste in the tube will contaminate all the other materials being recycled anyway. So most of us would then probably think, hey, simple, let's just cut open the tube and clean it, right? And that's certainly what I've seen some beauty brands recommend with their skincare or hair care packaging on TikTok, for instance. But interestingly, the Toms of Main website has a whole FAQ about the recyclability of its tubes. It's actually really well written and it's interesting. And they very clearly say, please don't cut open the toothpaste tube to try and remove excess toothpaste, because during the processing of the tube at the recycling facility, the tube is ground up and goes through a rinsing process where all the residual toothpaste is washed off the plastic. So there's no need for you to do any rinsing at home. Now, it sounds like there's some kind of disconnect somewhere here, and I'm sure the lawsuit will go into much greater detail to discover what can and can't be done. So the suit alleges that Colgate, I. E. Toms of Maine, knows that these tubes inevitably end up in landfills or are incinerated because recycling facilities don't exist. Accept them. And their website very clearly also tells the story of how they're trying to partner with the recycling community to turn the word recyclable into recycled. I do like that very much. So the intentions are certainly there, by the looks of things. The lawsuit claims that the company therefore knows its statements are, and I quote, material false, misleading, and likely to deceive members of the public. I personally think there is a certain degree of harshness to this claim because I do think there are plenty of bigger fish out there to fry. So what are the plaintiffs or the consumers and their law firm actively seeking from the lawsuit? Well, it says in the filing that in addition to damages, restitution and statutory penalties, plaintiffs seek on behalf of themselves and the general public an injunction precluding the sale of the products within a reasonable time after entry of judgment unless the product's packaging and marketing are modified to remove any language suggesting that the tubes are recyclable. Or in the alternative, the language is qualified to accurately state the availability of recycling programs. Again, let's put this into plain English. They're asking for a financial payout and they're asking for the toothpaste to either be removed from the market or for the sustainability claims on the packaging to be removed or properly explained in context. Now, I personally do think that there is likely a degree of opportunism here because if you can make money by suing brands for getting it wrong, then someone is likely to want to do so right? And to be honest, every brand will get something wrong at some point. So there's no doubt an entire industry out there. However, if this kind of lawsuit gains ground, and if this one in particular is successful, then I really wouldn't be surprised if we start to see more cases exactly like this. Think about the beauty brands or packaging suppliers who claim that their packaging is circular simply because it's theoretically recyclable. As I said earlier, well, there are countless examples of companies getting this wrong, and I would expect we'll start to see some kind of mad dash from brands to modify some of their sustainability and recyclability claims in response to lawsuits exactly like this one. So hopefully some regulatory guidance will step in and provide a more common sense direction. But I suspect that we'll see many lawsuits along the way first, particularly in the U.S. so you're probably wondering what happened with the lawsuit so far, and I can tell you that it's still working its way through the system. Colgate Palme Olive asked for the suit to be dismissed, but the judge in question rejected that request outright in February. In fact, the judge called many of Colgate's arguments for dismissal unpersuasive. So the case will undoubtedly rumble on, and I believe there's a call for a jury, and I'm sure we'll be reading much more about it in the media in the coming period of time. So my challenge to you for this week is to keep a close eye on what's happening here. These first lawsuits that we're seeing, like this one for Toms of Maine will lay the foundation for the sustainability and recyclability claims of the future, and I am fascinated to see what happens and I'll be fascinated to watch the outcome of this trial. I might even do a follow up piece when it's worked its way through the legal system. So stay tuned for that. So thank you for listening to my Green Beauty opinions. Remember to visit the Formula botanica website@formulabotanica.com to try our free online formulation course. And if you haven't subscribed yet to the Green Beauty Conversations podcast, please make sure you do so now in your favorite podcast app. Leave me a five star review if you enjoy the conversations I host and I'll be back soon with my next episode.