Defense Insights As PFAS Consumer Product Claims Rise

If the first two waves of PFAS litigation focused on impacts to natural resources—namely groundwater—and personal injury claims alleging exposure to PFAS, the third wave of PFAS litigation has certainly arrived. 

A few years ago, PFAS complaints based on violations of consumer protection statutes were in their nascency.  Recently, there has been a proliferation of lawsuits brought by consumers seeking damages for failure to disclose the presence of PFAS in various consumer products.

In order to be prepared for these types of claims, consumer product companies should make sure they know the composition of their products and the potential sources of PFAS in their supply chains, and should understand the latest scientific and technical issues involved in sampling and testing for PFAS.

Manufacturers are also well advised to consider the risks of federal and state laws that require reporting—not just laws restricting the sale of products that contain PFAS—as the data these reporting laws generate could be used by plaintiffs in future litigation.

In just the last few weeks of October, the following proposed class action complaints—all targeting Hershey’s candy packaging—have been filed:

• Mohamed v. The Hershey Company, d/b/a Bubble Yum, filed on October 24, 2024 in California state court (Los Angeles County Superior Court, No. 24STCV27893), seeking damages for failure to warn and violations of state consumer protection laws based on failure to disclose the presence of PFAS in product packaging;
• Parish v. The Hershey Company, filed on October 29, 2024 in federal district court in Pennsylvania (M.D. Pa., No. 1:24cv-01868), seeking damages for fraud, breach of warranty, negligent misrepresentation, violations of state consumer protection laws, and other claims, based on failure to disclose the presence of PFAS in candy wrappings; and
• Dominici v. The Hershey Company, filed on October 31, 2024 in federal district court in California (C.D. Cal., No. 2:24cv-9414), alleging breach of warranty, fraud, and violation of consumer protection laws for failure to disclose the presence of PFAS in product packaging.

These cases join the many filed in the last few years alleging false advertising and consumer protection causes of action based on the alleged presence of PFAS in cosmetics, menstrual products, fast food packaging, clothing, and other products.[i]

The recent explosion of legislation aimed at limiting or eliminating PFAS from consumer products is likely to fuel continued litigation in this area. Over twenty states in recent years have enacted or are in the process of enacting legislation restricting or eliminating the sale or import of products containing PFAS. 

Maine, Minnesota, and California are among the states at the forefront of these efforts. Since 2020, California has enacted laws banning the sale of PFAS-containing firefighting foam, food packaging, “juvenile products,” cosmetics, textiles, and menstrual products.

At the federal level, and in addition to the federal laws addressing PFAS in the environment, the Toxic Substances Control Act now imposes significant record-keeping and reporting requirements on companies manufacturing products containing PFAS and importing or selling those products in the United States.

As of now, there is no federal law banning the manufacture or sale in the United States of consumer products containing intentionally added PFAS. The Consumer Product Safety Commission (CPSC) has taken no action, so far, to ban the sale of consumer products that contain PFAS. 

In October 2023, the CPSC requested information and comment on PFAS in consumer products, including exposure information and alleged health effects. In that communication, the CPSC acknowledged some of the technical challenges relating to addressing PFAS in consumer products, including that there is “no single, universally accepted definition of PFAS” and that “there are thousands of different PFAS that could be registered on U.S. or global chemical inventories and are potentially in commerce.”[ii] 

The CPSC has taken no further action, perhaps recognizing these technical and practical challenges.

Recent Dismissals of Consumer-Based PFAS Lawsuits:  Courts Acknowledge Significant Technical Flaws

Manufacturers, distributors, and industry representatives are well advised to consider a significant flaw in many of the PFAS lawsuits that have been filed recently based on consumer protection laws—namely, the reliance on “total organic fluorine” calculations as a proxy method to quantify total PFAS in consumer products.

Recent court decisions confirm that over-reliance on “total organic fluorine” detections can be a fatal flaw in consumer-based PFAS claims. Indeed, all three of the cases noted above against The Hershey Company rely on calculations of “total organic fluorine” in the product packaging, and seek to use such detections as a proxy for detections of “total PFAS.” 

For example, the complaint in Mohammed v. The Hershey Company alleges that “identification of organic fluorine in industry and consumer products is an indicator that encompasses the total content of both known and unknown types of PFAS, unlike traditional targeted analyses that can reliably quantify only a few dozen known PFAS that have commercially available analytical standards.”[iii] 

Plaintiffs are heavily relying on quantification of “total organic fluorine” and trying to use those calculations as a measure of “total PFAS” in consumer products because, as the CPSC acknowledged, there is no universally accepted definition of PFAS, there are potentially thousands of different PFAS chemicals depending on how they are defined, and only a few PFAS compounds have sampling methods that have been approved by state or federal regulatory agencies.

Among other issues, the various available “total organic fluorine” sampling methodologies are often not a reliable means of identifying the presence of PFAS.  Recent decisions by trial courts have acknowledged these flaws, dismissing complaints that rely on “total organic fluorine” calculations as a surrogate for the idea of “total PFAS” in consumer products.  

In Bounthon v. The Procter and Gamble Company, filed on February 21, 2023 in the Northern District of California, plaintiffs’ proposed class action complaint alleged violations of various consumer protection statutes, based on the failure to disclose the presence of PFAS in tampons.[iv]  The complaint referenced “independent testing” that was allegedly “conducted in accordance with accepted industry standards for detecting whether the [tampons] contain organic fluorine, which is a surrogate for PFAS chemicals.”[v] 

Procter & Gamble moved to dismiss, because (1) “total organic fluorine” is not a reliable measure for the presence of PFAS, and (2) even if “total organic fluorine” could be relied upon as a proxy for PFAS detections, the complaint filed to allege that the PFAS allegedly detected in the products was harmful.

On October 15, 2024, the Court granted the motion to dismiss with leave to amend.[vi]  While plaintiffs referred to “total organic fluorine” as the “gold standard” of “total PFAS” testing, the Court was not convinced. 

Indeed, the Court noted in its order of dismissal that the documents plaintiffs cited in their complaint admit that “total organic fluorine” analysis “may detect organofluorine chemicals that are not PFAS” and that “targeted PFAS analysis” would be “necessary confirmation that the total fluorine measured originally” results from the presence of PFAS.[vii]  The Court similarly pointed out that the number of compounds containing fluorine is increasing in pharmaceutical drugs, electronics, and other materials. 

Ultimately, the Court granted dismissal, agreeing that “total organic fluorine” was not a reliable proxy for PFAS, and that even if “total organic fluorine” was a reliable indicator of PFAS, plaintiffs had failed to allege that the alleged level of PFAS detected was harmful to human health.[viii]

How to Prepare for More PFAS Litigation Alleging Consumer Protection Claims

A key lesson from these cases is to “follow the science.” When a complaint is filed, consumer product manufacturers should ensure they have engaged experienced counsel who have engaged and worked with technical experts who are well-versed in the currently approved and still-developing methodologies to sample for PFAS, and who can also advise stakeholders about the flaws in arguments equating “total organic fluorine” with “total PFAS.” 

In addition, manufacturers, their counsel, and their technical experts should also follow the flood of PFAS research. Scientific papers and studies relating to the presence of PFAS in consumer products, health effects from PFAS, and the reliability of various PFAS detection approaches are being released at a breakneck pace.[ix]

Consumer product companies should also be careful to work with their counsel to understand the chemical composition of their products and the risks posed by unintentionally added PFAS. While intentionally added PFAS in consumer products clearly present a regulatory challenge at the state level (given the numerous states that have enacted or are rolling out restrictions on PFAS in consumer products) and a risk of litigation, including potential class action claims, unintentionally added PFAS are also a problem.

Unintentionally-added PFAS can be found in many consumer products, usually resulting from unknown or undetected PFAS in the original source material from which the consumer product was manufactured, or from other cross-contamination in the supply chain or manufacturing process. However, PFAS may also be detected in consumer product samples by virtue of cross-contamination within a plaintiff’s laboratory sampling procedures, meaning that the PFAS reflects laboratory error, not the presence of PFAS (intentionally or unintentionally added) in the actual product. 

Manufacturers should work with counsel and similarly situated industry stakeholders to be aware of the potential sources for unintentionally added PFAS, and the risk of litigation (e.g., litigation under California’s Proposition 65) where plaintiffs may seek to assert claims based on the alleged presence of even trace amounts of unintentionally added PFAS.

In addition, even if a consumer product manufacturer believes that PFAS are not intentionally or unintentionally present in its products, it should consider broadly ensuring that PFAS are included on their “restricted substances” lists, and that PFAS chemicals are a part of their routine product sampling protocols to ensure compliance with such lists. 

In a similar vein, manufacturers should consider adding language regarding PFAS restrictions and indemnity provisions to standard purchase and sale agreements with vendors within their supply chain.  And, given the focus on consumer products by the plaintiffs bar, manufacturers should carefully develop labeling and public-facing information regarding their products to try to mitigate the risk of consumer protection litigation.

Finally, consumer product manufacturers and distributors should monitor and track the continuously evolving state-level restrictions and reporting requirements relating to the sale of products containing PFAS, and assemble a legal and technical team to ensure compliance with those requirements. States that have been at the forefront of such legislation continue to rapidly roll out new restrictions, and several states that have not yet acted are likely to do so in the near future. 

In addition, consumer product companies should consider the risks of laws that require reporting—not just laws restricting the sale of products that contain PFAS.  Plaintiffs and their lawyers are likely to use information and data generated by federal and state reporting laws as a means of targeting companies in future consumer product litigation.