WHAT YOU NEED TO KNOW IN A MINUTE OR LESS

In a minute or less, here are the key points manufacturers, distributors, and retailers of consumer products need to know about recent lawsuits related to per- and polyfluoroalkyl substances (PFAS) targeting their peers.

Moving Beyond Environmental Claims

While environmental, commercial product liability, and personal injury lawsuits related to PFAS are still filling dockets, suits have expanded into the realm of consumer protection-based class actions. Under the various consumer protection statutes on the books throughout the US, consumers can bring claims based on deceptive, misleading, and fraudulent conduct connected to their purchase of products. When it comes to PFAS, plaintiffs generally allege that they have been misled in one (or more) of three ways: 

1. Representations that products containing PFAS are safe and healthy;

2. Representations that products containing PFAS are sustainable and environmentally-friendly; and

3. Purported failure to disclose the presence of PFAS in products.

Plaintiffs allege that, without regard to allegations of personal injury or property damage, had they known of the presence of PFAS in a product, they would not have bought the product or would have paid less. Plaintiffs also include claims for breach of express and implied warranty, fraud, negligence, and unjust enrichment.

Plaintiffs' Targets

Plaintiffs’ counsel are using invalidated testing methods as the basis for their claims that products contain undisclosed PFAS. The testing methods are applied haphazardly to a wide variety of products, without considering whether the tests will actually reveal the existence (or type) of PFAS in the materials being tested. Cosmetics have proven to be a primary target, with plaintiffs focusing on manufacturers’ statements that the products are “natural,” “healthy,” or “pure” to bring putative class actions. 

Food packaging is another favorite of plaintiffs’ counsel. The suits allege that, despite representations otherwise, the alleged existence of PFAS makes the packaging unsafe for use with food. Other targets range from feminine hygiene products to fruit smoothies, juices, microwave popcorn, cat and dog food, and car seats.

Looking Ahead

PFAS-related consumer class actions are in their infancy, and whether classes will be certified remains to be seen. As the suits progress, defendants will challenge the science behind the plaintiffs’ claims, and the results of those challenges will inform whether and how future claims proceed.

For now, claims are on the rise, and the list of products subject to consumer protection PFAS suits will undoubtedly expand. Tracking the litigations and the science will help companies both stay ahead of the issues and prepare if they become a target.

Read Part I and Part Two 

Litigation Minute: FDA and State Action on PFAS in Food Packaging Part I

Litigation Minute: Is PFAS Litigation Heating Up? Part II