A federal multidistrict litigation (MDL) court in New Hampshire has denied the motion to dismiss filed by the defendant in consolidated class actions alleging that the company misled consumers by claiming that its antibacterial soaps with triclosan are more effective than regular soap and water and eliminate “99% of germs”; the court rejected the defendant’s argument that the Food and Drug Administration (FDA) has primary jurisdiction over certain factual questions that must be answered to resolve the plaintiffs’ claims. In re Colgate-Palmolive Softsoap Antibacterial Hand Soap Mktg. & Sales Practices Litig., MDL No. 2320 (U.S. Dist. Ct., D.N.H., decided March 18, 2013).
According to the court, the litigation is “backward-looking; it seeks to determine whether past conduct was misleading. The FDA’s monograph process, in contrast, is forward-looking. It will determine the permissible content of future product labels. It will establish the permissible concentrations of triclosan in consumer hand soaps, if it permits use of the ingredient at all. The monograph will articulate the FDA’s findings, based on the current state of scientific knowledge, about the safety and effectiveness of triclosan as used in consumer hand soaps.”
Thus, the court ruled, “it is unlikely that any determination by the FDA concerning the future marketing and sale of triclosan hand soap will have any substantial effect on plaintiffs’ retrospective claims for damages. Nor is this court likely to benefit materially from the FDA’s technical expertise. Given the limited benefit to be derived by waiting [evidenced by the decades’ long agency investigation into the chemical], and the substantial harm that plaintiffs will suffer if the action is delayed to await FDA action, I determine that this is not an appropriate case in which to apply the primary jurisdiction doctrine.”