On October 15, a California federal court handed down a ruling that significantly undermines the so-called “gold standard” of per- and polyfluoroalkyl substances (PFAS) testing relied upon by most plaintiffs in similar types of litigation. In Bounthon et al. v. The Procter & Gamble Co., proposed class action plaintiffs alleged that Procter & Gamble’s Tampax brand tampons contain PFAS, notwithstanding product claims of “purity,” and asserted violations of various states’ consumer protection statutes, including California’s False Advertising Law, California’s Consumer Legal Remedies Act, California’s Unfair Competition Law, and a common law claim for unjust enrichment/quasi-contract.

The recent ruling granting the defendant’s motion to dismiss with leave to amend — for a second time — held that the plaintiffs’ test methods did not sufficiently indicate that the defendant’s products contained PFAS. This appears to be the first time a court has called such testing into question in a series of similar lawsuits filed in recent months.

The Second Amended Complaint alleged that the results of “independent testing” performed in March 2022 and April 2023 demonstrated “a total PFAS concentration of more than 30 ppm in some of the individual components, with much higher concentrations of PFAS in the aggregate” product. But the testing — like other testing relied on to date in these types of lawsuits — looks only at total organic fluorine (TOF) content. While TOF testing is widely accepted as a screening tool for PFAS, it is not dispositive of the presence of PFAS in a particular substance because of the many organic fluorine compounds that are not PFAS. As a result, more targeted testing is required to confirm the presence of PFAS (and specific forms of PFAS) in a consumer product.

The defendant moved to dismiss the lawsuit on various grounds, including that the plaintiffs failed to sufficiently allege that P&G’s tampons contain unsafe levels of harmful PFAS, pointing to the plaintiffs’ misplaced reliance on the results of their TOF testing, among other things.

The California federal court found that TOF testing does not plausibly indicate the presence of PFAS in a product, citing information found in the scientific articles and papers identified in the plaintiffs’ complaint. For example, one such article conceded that “TOF may detect organofluorine chemicals that are not PFAS” and that there are “gaps that need to be addressed by regulatory and scientific communities, in particular, the need for expanded targeted analysis of PFAS, the development of a sensitive, broad spectrum PFAS test, and further investigation into ultrashort chain PFAS.” Another source noted that, “the number of compounds containing fluorine is increasing in pharmaceutical drugs and organic electronics materials” and “there have been about 30 natural products discovered that contain C-F bonds.”

Significantly, the court also held that even if the TOF analysis were a reliable testing method, the Second Amended Complaint failed to sufficiently allege that the tampons contained harmful levels of PFAS.

This decision could signify a major shift in PFAS litigation because plaintiffs routinely rely on the TOF analysis as a basis to allege that defendants’ products contain PFAS. This decision could provide persuasive if not dispositive precedent in future similar motion practice, and (optimistically) could dissuade future similar lawsuits … at least until the plaintiffs’ bar discovers a workaround to TOF testing or decides to invest significantly greater resources in more precise PFAS test methods.