S.C. Johnson marketed a number of its Windex cleaning products as "non-toxic."  Some consumers sued, alleging that the claim is misleading because the products contain ingredients that may be harmful to humans, pets, or the environment.  The United States District Court for the Southern District of New York dismissed the case with leave to replead, holding that the plaintiffs had failed to adequately allege that the products are toxic.  In its decision, however, the court did provide some important insights into how advertisers should think about "non-toxic" claims.

Applying New York Law

The plaintiffs sued for false advertising under sections 349 and 350 of New York's General Business Law, which prohibits "deceptive acts or practices in the conduct of any business, trade or commerce" and "false advertising in the conduct of any business, trade or commerce."  In order to state a claim, the plaintiffs were required to show that the advertiser engaged in consumer-oriented conduct, that was materially misleading, and that they suffered injury as a result.  

In order to demonstrate that advertising is materially misleading, the plaintiffs must show that the advertising is "likely to mislead a reasonable consumer acting reasonably under the circumstances.  It's not enough that a few consumers may conceivably be misled however.  Rather, the plaintiffs must show that, "a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."  

What Does Non-Toxic Mean?

S.C. Johnson moved to dismiss the complaint on the grounds that the plaintiffs' definition of "non-toxic" wasn't consistent with reasonable consumers' understanding of the term.  

The plaintiffs alleged that that S.C. Johnson's Windex labels are misleading to reasonable consumers because they imply that the products will not be harmful to people, common pets, or the environment, when, in fact, at their alleged levels of concentration, they could cause some harm, such as skin or eye irritation.  S.C. Johnson argued that no reasonable consumer would understand the term "non-toxic" to mean that the product causes no risk of harm at all.  

So, what does "non-toxic" mean, in the absence of a controlling, legal definition?  While acknowledging that the most common understanding of the term may be "poisonous" or "capable of causing serious death or serious debilitation," the court held that it is not the only definition.  Looking to the dictionary, the court pointed to definitions such as, "extremely harsh, malicious, or harmful."  Significantly, the court also looked to how the advertising industry's advertising self-regulatory program, the National Advertising Division, defined the term, which equated "non-toxic" with a "lack of harmfulness."  

In 2020, the NAD had determined -- in a case holding that S.C. Johnson had not properly substantiated its "non-toxic" claims -- that the use of the term "non-toxic" for a household cleaner "reasonably conveys a message that the product will not harm people (including small children), common pets, or the environment."  After S.C. Johnson appealed, the National Advertising Review Board took it a step further, explaining that, "the panel is concerned that an unqualified non-toxic claim will lead reasonable consumers to conclude not only that a misused cleaning product does not pose a risk of death or serious consequences, but also that product misuse poses no health risks, even those that are not severe or more transient in nature." 

Were the Plaintiffs' Allegations Sufficient? 

The court dismissed the complaint, however, holding that the the plaintiffs had failed to adequately allege that the products are toxic.  Noting that the plaintiffs don't know what the actual concentrations are of the allegedly toxic ingredients in the products, the court said that the complaint did not sufficiently explain basis for their belief that the products were, in fact, toxic.  The court wrote, "without more factual content about the makeup of the Products or any evidence that these Products have caused harm in the real world, the Complaint pleads facts that are merely consistent with a defendant's liability, thereby stopping short of the line between possibility and plausibility of entitlement to relief." 

What Do the Green Guides Say? 

Although the Federal Trade Commission's guidance in this area is only advisory and not independently enforceable, it's useful to look at what the FTC's Guides for the Use of Environmental Marketing Claims have to say about "non-toxic."  The FTC says that a "non-toxic" claim communicates that the product is non-toxic for both humans and for the environment generally.  Unfortunately, the FTC doesn't formally define what "non-toxic" means.  

An example the FTC gives, however, does seem to suggest that the FTC is aligned with the definition that was accepted by both the NAD and the court here.  In the example, the FTC says that, if a marketer advertises a product as "essentially non-toxic" or "practically non-toxic," those terms likely communicate to consumers that the product does not pose "any risk to humans or the environment, including household pets."  So, here, in a situation where the non-toxic claim is somewhat qualified, the FTC appears to believe that the claim "non-toxic" communicates that the product causes no risk at all.  

Rivera v. S.C. Johnson & Son, 2021 WL 4392300 (S.D.N.Y. 2021).