/>iThe class action plaintiffs allege that BIC failed to disclose to consumers the presence of PFAS in the lubricated strip on some of its razors. The plaintiffs are pursuing causes of action under California’s Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and claims of fraud, unjust enrichment, and negligent failure to warn.
This proposed class action stems from information collected by a public advocacy group after submitting a public records request for information that BIC reported to the State of Maine’s Department of Environmental Protection (Department) pursuant to Maine’s PFAS disclosure requirements enacted on July 15, 2021. The Maine law — An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution — initially required manufacturers of products sold in Maine containing intentionally added PFAS to submit a written notification to the Department by January 1, 2023. This notification needed to include, among other things, a brief description of the product, the purpose for which the PFAS was used in the product, the amount of each PFAS in the product, and the name and address of the manufacturer. The law was later amended to extend the reporting deadline to January 1, 2025, and amended again to remove the January 1, 2025, deadline and narrow the class of manufacturers who must comply with the reporting requirements. However, by the time of the amendments, some companies had already reported the required information to the Department.
The BIC class action could mark the beginning of a new trend, given the rise of state laws (like Maine’s) and federal regulations. Minnesota recently passed a law that requires disclosing the presence of intentionally added PFAS to the Minnesota Pollution Control Agency by January 2026. Vermont currently requires disclosure when “high concern” PFAS are present in children’s products. In October 2023, the US Environmental Protection Agency (EPA) promulgated its final rule regarding reporting and recordkeeping requirements for PFAS under the Toxic Substances Control Act of 1976 ( Federal Rule). The Federal Rule requires manufacturers or importers of PFAS or PFAS-containing articles to provide a one-time report to EPA on the presence of PFAS in their products for each year from 2011 to 2022, even if the products have been discontinued. By contrast, the reporting aspects of Maine’s law targets products to be sold after, in most cases, January 1, 2032.
Also, the Federal Rule requires companies to specify the chemical information and maximum concentration of each specific PFAS used, as well as the use and production volume of each PFAS-containing product, disposal, exposures, and hazards associated with PFAS in its products.[1] The Federal Rule’s reporting deadline is either May 8, 2025, or November 10, 2025, depending on the company’s size.
Since some, if not all, PFAS information reported to state agencies or EPA[2] can be accessed through public information requests such as a federal Freedom of Information Act (FOIA) request, manufacturers and importers (and potentially also distributors) should closely examine their labeling and warning programs to ensure compliance with state and federal consumer protection statutes and common law principles of warning for defects and fraud, among others. With certain reporting deadlines set for one or two years out, there is still time to mitigate the fallout from these new laws.
It should be noted that some states, like California and Colorado, require a manufacturer of certain products to disclose the presence of some PFAS online or on a product label. In those states, a public information request would not be necessary to access information concerning the PFAS contents in companies’ products. By the same token, however, public or on-product disclosure of PFAS content, while potentially exposing a company to litigation arising from pre-statute or noncompliant products, arguably forecloses litigation of certain claims arising from the sale of products that comply with these statutes.
[1] To note, only US manufacturers are required to disclose information on exposure, disposal, and health and environmental effects of articles containing PFAS. Importers of PFAS-containing articles have the option of using streamlined reporting, which does not require disclosure of such information.
[2] EPA’s Federal Rule does allow for some of the information reported to remain confidential. However, companies must be able to substantiate why the information should be considered confidential and not publicly accessible.
