Litigating "Forever Chemicals"


By Melissa Weiner

Imagine yourself in the aisle of your favorite big box retailer. Confronted with a shelf of products, would it influence your purchase if one of the products contained any amount of a “forever chemical,” such as per-and polyfluoroalkyl substances (“PFAS”), known to cause significant harm to human health and the environment?

Would your answer change if you were buying a food product versus a personal hygiene product? Or a product for your infant? What if that product’s labeling promised to be “free from” certain harmful ingredients or simply omitted any mention of the inclusion of the chemicals? What certainties would you need to feel confident that the product in your hand does not contain PFAS?  Would packaging accrediting those certainties, or lack thereof, impact your decision to spend money on that product? And what kind of information would you need to feel certain that the product does not contain PFAS? 

Welcome to the world of PFAS litigation, where courts are tackling these complex issues—and coming to entirely disparate conclusions.

PFAS is a term that had little relevance just a few years ago. Now, it prominently appears on social media as influencers warn of its dangers, mom blogs recommend products that have passed testing confirming that PFAS is not in the products, and the news reports on “forever chemicals.” PFAS are now subject to new regulatory standards at the state and federal level for groundwater, drinking water, surface water, soil, firefighting foam, air emissions, food packaging and consumer products. The relatively unregulated nature (and emerging regulations) of PFAS coupled with the development of knowledge regarding their adverse effects has created a hotbed of class action litigation nationwide.  

PFAS class action cases typically center on a violation of state consumer protection statutes for affirmative false advertising or actionable omissions. The cases range from PFAS migrating in food wrapping (think fast food) to feminine hygiene products (period underwear and tampons). And just like the wide variety of “PFAS-containing” products at issue in the litigation, the courts have issued vastly different rulings on dismissal regarding the level of information needed to sustain a plaintiff’s claims, which seem to create little pattern—for better or worse. 

The courts seem focused on two key issues: (1) whether the “reasonable” consumer would likely be deceived by the labeling and/or omission and (2) whether the plaintiffs suffered an Article III injury.  

The Not-So-Reasonable Consumer?  

Put yourself in the shoes of the “reasonable consumer,” the objective test that determines the fate of a false advertising class action. Would statements that a product is “PFAS Free” be sufficient to withstand dismissal? Likely yes, as a court in the Northern District of California found in a case involving period underwear, discussed below. What about statements that the product contains “only real ingredients” and “100% ingredients from natural sources?” Would those statements lead a reasonable consumer to believe that the product does not contain PFAS? 

It depends. When a regulated term is at issue, that would be cause for dismissal, according to a judge in the United States District Court for the District of Illinois. The court found that, even assuming that the bags contain PFAS, and that the PFAS migrates into the popcorn, and such migration amounts to harmful PFAS levels, “the question is whether reasonable consumers would consider such an undisputedly artificial, migratory chemical to be an ‘ingredient’ in the challenged food products.” See Richburg v. Conagra Brands, Inc., No. 22-cv-2420, 2023 WL 1818561 (N.D. Ill. Feb. 8, 2023). The court found a reasonable consumer would not believe PFAS was an ingredient, and it dismissed the class action. Id.  

This issue has been addressed in cases involving the inclusion of an allegedly harmful ingredient despite affirmative representations to the contrary. In Stuve, et al. v. The Kraft Heinz Co., No. 21-CV-1845 (N.D. Ill.), the plaintiffs alleged that Kraft Mac & Cheese’s packaging statements of “The Taste You Love” with “NO Artificial Flavors,” “NO Artificial Preservatives,” and “NO Artificial Dyes,” were affirmatively false and misleading under various consumer protection statutes as the products contained undisclosed phthalates, which are known for causing adverse health effects. Like Ruiz, the court dismissed the plaintiffs’ false advertising claims based on false representations—that no reasonable consumer would be misled—but sustained the plaintiffs’ omissions claims under the same foundation of facts. 

When is Enough Enough? 

Article III standing is not generally a significant barrier in a false advertising class action involving an alleged overpayment due to false label allegations. And for many judges, it still is not an appropriate basis for dismissal in PFAS cases. In Kanan, et al. v. Thinx Inc., the plaintiffs alleged that the defendant made material misstatements regarding the composition of its products—period underwear—given the discovery of PFAS. See Kanan, et al. v. Thinx Inc., No. 20-CV-10341 JVS (JRPx), 2021 WL 4464200, at *1 (C.D. Cal. June 23, 2021). The Thinx court found that the plaintiffs established Article III standing by alleging had they known the truth, they would not have purchased the product or would have paid less. Id.; see also Clinger v. Edgewell Pers. Care Brands, LLC, No. 3:21-CV-1040 (JAM), 2023 WL 2477499, at *3 (D. Conn. Mar. 13, 2023) (finding in a benzene class action that the fact that the plaintiffs did not actually test the products they purchased does not mean they lack standing because they relied upon third-party testing).  

Similarly, a United States District Court for the Northern District of Illinois court found “taking the facts in the light most favorable to plaintiffs, plaintiffs allege that they relied upon certain representations on defendant’s packaging and paid more than they otherwise would have for a product that contained a risk of PFAS contamination.” The Richburg court found, “it is irrelevant whether plaintiffs can prove with certainty that the products that they themselves purchased contained significant levels of PFAS . . .” Id. Rather, alleging the products were substantially similar, generally contained PFAS, and that the price paid was elevated based on the representations was enough to establish standing. See Richburg, 2023 WL 1818561. 

However, the injury question is not definitively going the plaintiffs’ way. In fact, some courts are scrutinizing the allegations of third-party testing when examining the issue of standing.  

The intersection of the law and facts in an adulteration case is especially interesting as the most prominent defense in PFAS litigation is that the defendant is ignorant as to the existence of PFAS in the products, and that it was not “intentionally added.” It begs the question, then, how a plaintiff is supposed to prove the ultimate source of the adulterated ingredient (to establish some courts’ Article III requirements) if the company responsible for manufacture and distribution pleads ignorance as to the source or has difficulty pinning down its origination. Food for thought as to whether this is a bar set too high at the pleading stage for a line of cases that could be protecting the public from potentially harmful consumption. 

Doing Right by Consumers  

Even given the evolving jurisprudence in the PFAS litigation, some companies have made what appears to be a business decision to make a formulation change and enter into a class-wide settlement. The Thinx class action resulted in a nationwide settlement providing for case reimbursement or a voucher for additional product, at your option. Critically, Thinx also agreed to take measures to help ensure that PFAS is not intentionally added to the products at any stage of production. The measures entail maintaining production controls, including material reviews. Additionally, Thinx will require its suppliers to review and sign a Supplier Code of Conduct and Chemical Supplier Agreement, which will require suppliers to attest that PFAS are not intentionally added to the products. See Dickens, et al. v. Thinx Inc., No. 1:22-cv-4286-JMF (S.D.N.Y).  

Stay tuned as plaintiffs uncover more hidden PFAS in products consumed daily and the evolving case law on legally actionable false advertising claims.  

Melissa S. Weiner is a civil litigator whose work is squarely focused on combating consumer deception, particularly in the consumer products arena. Ms. Weiner has taken a leadership role in numerous large class actions and multi-district litigations in cases across the country. These include cases challenging tobacco marketing, data breaches, defective construction products and false advertising.

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