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Fish v. Tom's of Maine Inc.

'Antiplaque' Toothpaste Not Deceptive as to Gingivitis, Periodontal Disease Prevention

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DECISION and ORDER I. INTRODUCTION On January 27, 2023, plaintiff Patrick Fish (“Fish” or “plaintiff”) filed this putative class action against defendant Tom’s of Maine, Inc. (“Tom’s” or “defendant”). Dkt. No. 1. Plaintiff’s seven-count amended complaint1 alleges that defendant engaged in deceptive business practices, fraud, and breach of implied and express warranties under state and federal law. Dkt. No. 12. On May 26, 2023, Tom’s moved pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(6) to dismiss Fish’s amended complaint. Dkt. No. 17. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument. II. BACKGROUND Tom’s is a Maine corporation that manufactures and sells a variety of personal care products including an “antiplaque & whitening” fluoride-free toothpaste (the “Product”). Am. Compl.

1, 26. The Product is packaged in 5.5-ounce tubes and sold in cartons shown below: Def.’s Mem., Dkt. No. 17-1 at 1.2 Tom’s sells the Product in both brick-andmortar stores across the United States and through online retailers, including Amazon.com and Walmart.com. Am. Compl.

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