Tom’s a wholly-owned subsidiary of Tom’s of Maine Holdings, Inc., which, in turn, was a wholly-owned subsidiary of Colgate. Tom’s specialized in manufacturing personal care products, such as toothpaste and deodorant. The company marketed numerous toothpaste flavors and deodorant varieties as “natural”, which included 34 toothpaste flavors and 17 deodorant varieties, all of which were promoted as “natural” on their respective packaging. The packaging of each toothpaste and deodorant product featured a representation claiming the product’s “natural” nature.
Anne De Lacour, Andrea Wright, and Loree Moran, individually and on behalf of all others similarly situated (collectively, Plaintiffs), argued that the use of the word “natural” by the Colgate-Palmolive Co., and Tom’s of Maine Inc. (collectively, Defendants) on these products was false and misleading. They contended that the products in question contained ingredients, such as aluminum chloralhydrate, glycerin, propylene glycol, sodium lauryl sulphate, sorbitol, and xylitol, which were deemed “synthetic and/or highly chemically processed.” The Plaintiffs asserted that they suffered harm as a result of relying on Tom’s “natural” representations, as they were led to purchase the products at a premium price.
The Plaintiffs sought damages on behalf of themselves and three distinct classes – the “California Class,” the “Florida Class,” and the “New York Class.” Their claims were based on various legal provisions, including California’s Consumer Legal Remedies Act (“CLRA”), False Advertising Law (“FAL”), and Unfair Competition Law (“UCL”). In addition, the lawsuit invoked Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), New York’s General Business Law (“NYGBL”), and a claim for breach of express warranty.
After the discovery phase concluded, the Defendants filed motions for summary judgment, motions to exclude the Plaintiffs’ experts, Dr. Zhaohui Zhou, Brian M. Sowers, J. Michael Dennis and Colin B. Weir, and a motion for class decertification.
Market Research Expert Witness
Brian M. Sowers is a Principal at Applied Marketing Science, Inc. (AMS), a distinguished market research and consulting firm. With a career spanning since 1996, he has amassed extensive expertise in market research. Prior to AMS, Sowers held research positions at the Forbes Consulting Group. Throughout his career, he personally designed and executed numerous market research surveys across diverse modalities and populations. Sowers holds a Bachelor of Arts in History from Roanoke College and earned a Master of Business Administration from the University of Colorado.
Chemistry Expert Witness
Zhaohui Sunny Zhou holds a Bachelor of Science degree in Organic Chemistry from Peking University, Beijing, China, and a Ph.D. in Bioorganic Chemistry from The Scripps Research Institute, California. Zhou is currently serving as a Professor in the Department of Chemistry and Chemical Biology at Northeastern University, and also holds positions as Faculty Fellow of the Barnett Institute of Chemical and Biological Analysis and Affiliated Faculty of Bioengineering and Biology. With expertise in chemistry, biochemistry, and chemical biology, Zhou conducts research and teaches various aspects of chemistry related to natural products and derivatives.
Political Science Expert Witness
J. Michael Dennis holds a B.A. and an M.A. in Government from the University of Texas. He then earned his Ph.D. in Political Science from the University of Chicago. Dennis is currently the Senior Vice President at NORC and is also the President and Owner of JMDSTAT Consulting Inc. Prior to this, Dennis held the position of a Managing Director at GfK Custom Research LLC. With over 25 years of experience, Dennis specializes in designing and conducting surveys focused on the opinions, perceptions, attitudes, preferences, and values of consumers, voters, members of association, and citizens.
Economics Expert Witness
Colin B. Weir holds an MBA with honors from Northeastern University and a Bachelor of Arts degree in Business Economics from the College of Wooster. Weir has provided consulting expertise on diverse consumer and wholesale products cases, specializing in calculating damages for various product categories such as food, household appliances, herbal remedies, health/beauty care products, electronics, furniture, and computers. Weir is currently serving as the President at Economics and Technology, Inc., his work involves a range of economic analyses, including econometric and statistical analysis, multiple regression, surveys, statistical sampling, micro- and macroeconomic modeling, and accounting.
Discussion by the Court
Plaintiffs asserted that Tom’s labeling of its toothpaste and deodorant products as “natural” was deceptive, alleging the inclusion of synthetic or highly chemically processed ingredients. They sought damages under various legal provisions. To succeed, Plaintiffs had to prove that a “reasonable consumer” would likely be misled by Tom’s use of “natural.” The reasonable consumer standard required a probability that a significant portion of the public could be misled. In their evidence, Plaintiffs relied on an expert report, governmental guidance, definitions by Named Plaintiffs, internal documents, and Tom’s employees’ testimony. The admissibility and sufficiency of this evidence were challenged in the context of Tom’s Motion for Summary Judgment.
Expert Sowers, responsible for designing surveys on toothpaste and deodorant, aimed to assess consumer perceptions of Tom’s “natural” claims. Respondents viewed products with the contested labeling and answered a series of questions, focusing on whether the term “natural” conveyed the presence of “only natural ingredients,” “some natural and some artificial ingredients,” or “no natural ingredients” (only artificial). However, criticisms arose concerning the flaw in Sowers’s approach. He defined “natural” and “artificial” solely in relation to each other and failed to provide clear definitions, rendering the terms ambiguous. This lack of clarity undermined the meaningful interpretation of respondents’ answers, leading to the exclusion of Sowers’s report and testimony in the litigation.
Plaintiffs engaged Expert Zhou to opine on the “scientific merit” of Tom’s use of the word “natural” in describing its toothpastes and deodorants. Defendants contended he lacked the expertise to assess whether toothpaste and deodorant ingredients were “natural.”
Experts Dennis and Weir were engaged by the Plaintiff to provide evidence of classwide injury. Dennis conducted two surveys, one for Tom’s toothpastes and another for Tom’s deodorants. Based on those surveys, Dennis contended he could isolate a “price premium,” or portion of the market price consumers paid, that was attributable to the “natural” claim at issue. Weir, in turn, endorsed Dennis’s analysis and then used simple multiplication to calculate Plaintiffs’ claimed “price premium damages” (price premium x units sold) and “statutory damages” ($550 x units sold). Defendant argued that Dennis’ conjoint analysis suffered from numerous fatal defects and alleged that Dennis doctored the respondents’ answers. Defendant also added that Weir’s opinions were inadmissible on account of the lack of a specialized
degree in the field of retail pricing.
Firstly, in their attempt to illustrate a reasonable consumer’s perception of “natural,” Plaintiffs cited governmental guidance, Named Plaintiffs’ definitions, Tom’s internal documents, and the testimony of Tom’s employees. However, this evidence fell short of establishing that a reasonable consumer interpreted Tom’s use of “natural” as an assurance that its products lacked synthetic or highly chemically processed ingredients. Instead, the evidence indicated diverse interpretations of the term “natural.”
There was no governmental guidance specifically addressing the use of “natural” labeling on personal care products, as acknowledged by Plaintiffs. The most relevant guidance pertained to food products, with differing interpretations from various agencies. In 1982, the United States Department of Agriculture defined “natural” for meat and poultry products as free of artificial flavors, colorings, chemical preservatives, and not more than minimally processed. The United States Food and Drug Administration (FDA) around 1988 stated that “natural” meant nothing artificial or synthetic had been included or added to the product beyond normal expectations. In 2015, the FDA sought public comments on the use of “natural” on food product labeling, receiving over 7,000 comments reflecting diverse interpretations, including “organic,” “minimally processed,” “chemical-free,” “hormone-free,” “non-GMO,” and “not ‘artificial’/’synthetic.’” Despite the comments, the FDA did not establish a formal definition for the term.
Given the absence of governmental guidance specifically addressing the use of “natural” labeling on personal care products and the lack of a consistent definition for “natural” in food products, Plaintiffs were unable to rely on governmental guidance to establish a reasonable consumer’s understanding of the term. This limitation was noted in a similar case, In re Kind, 627 F. Supp. 3d at 284, where it was emphasized that Plaintiffs could not depend on an objective, regulatory definition of “All Natural” to demonstrate a reasonable consumer’s understanding due to the nonexistence of such a definition.
Secondly, Plaintiffs’ reliance on Named Plaintiffs’ testimony to establish a reasonable consumer’s understanding of “natural” was deemed inadequate. The Named Plaintiffs failed to provide evidence indicating that their perspectives on the term aligned with those of a reasonable consumer, as opposed to reflecting their individual subjective beliefs. Citing Hughes v. Ester C Co., 330 F. Supp. 3d 862, 872 (E.D.N.Y. 2018), the Court concluded that the Plaintiffs’ “conclusory allegations and ‘anecdotal’ testimony” were insufficient to create a genuine issue of material fact regarding deception.
Thirdly, Plaintiffs’ reliance on Tom’s internal documents and the testimony of Defendants’ employees to substantiate their theory of deception was rejected. Tom’s internal documents did not offer a foundation for determining a reasonable consumer’s understanding of “natural.” The statements made by Defendants’ employees were deemed reflective of individual views rather than representing the collective understanding of a reasonable consumer regarding the term “natural.”
Plaintiffs’ failure to present evidence supporting the claim that a reasonable consumer interprets “natural” as alleged resulted in the absence of a triable issue of fact regarding deception. Consequently, Defendants were deemed entitled to summary judgment concerning Plaintiffs’ claims under CLRA, FAL, UCL, FDUTPA, NYGBL, and breach of express warranty.
The remaining motions to exclude the reports and testimony of the experts Zhaohui Sunny Zhou, Colin B. Weir and J. Michael Dennis were denied as moot.
Defendants sought to decertify the classes, emphasizing the district Court’s obligation to monitor class decisions as the evidentiary record evolves. The Court may decertify a class if Rule 23 requirements are not met. A crucial Rule 23(b)(3) requirement is that common questions of law or fact must predominate over individual ones. Through the course of discovery, it became evident that Plaintiffs lacked support for their claim that reasonable consumers understood Tom’s use of “natural” to imply the absence of synthetic or highly chemically processed ingredients. The absence of generalized proof of deception led to a lack of common issues of fact, prompting the Court to decertify the classes.
Held
The Court issued a final ruling on January 04, 2024 granting Tom’s motion for summary judgment. Defendants’ motion to exclude the opinions of Sowers was also granted. Furthermore, Defendants’ motion to decertify the classes was granted. Lastly, any remaining motions by Defendants, including the motions to exclude Zhaohui Zhou, J. Michael Dennis and Colin B. Weir were denied as moot, implying that these motions were no longer relevant or necessary for consideration.
Key Takeaway
In the legal proceedings against Tom’s and Colgate, the expert testimony of Brian M. Sowers played a pivotal role in assessing consumer perceptions of the “natural” labeling on toothpaste and deodorant products. Sowers designed surveys to gauge how consumers understood the term “natural,” and his conclusions were challenged during the litigation. The Court ultimately excluded Sowers’s report and testimony, highlighting flaws in his approach. The Court found that Sowers defined “natural” and “artificial” solely in relation to each other, leading to ambiguity in respondents’ answers. This lack of clarity undermined the reliability of Sowers’s findings, contributing to the Court’s decision to grant summary judgment in favor of the Defendants. The exclusion of Sowers’s expert testimony reinforced the importance of clear definitions and methodologies in expert reports to establish a meaningful understanding of consumer perceptions in deceptive labeling cases.
Case Details
| Case Caption | Lacour v. Colgate-Palmolive Co. |
| Docket Number | 1:16cv8364 |
| Court | United States District Court, New York Southern |
| Citation | 2024 U.S. Dist. LEXIS 1227 |
| Order Date | January 3, 2024 |
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