As we reported last month, a California federal court recently dismissed a per- and polyfluoroalkyl substances (PFAS) class action complaint on the basis that the plaintiffs’ total organic fluorine (TOF) analysis testing method was insufficient to support their allegations that the defendants’ products contained PFAS. Prior to this, courts had dismissed similar lawsuits based on lack of standing, holding that the plaintiffs failed to allege that the specific products they purchased were found to contain PFAS.

For more on our analysis of the California court’s recent dismissal, see here. We also discuss emerging trends in PFAS litigation in a separate article here.

Hernandez and Catalano v. The Wonderful Company LLC and POM Wonderful LLC initially followed a similar trajectory but has since taken a different turn. The plaintiffs alleged that the defendants’ POM 100% Pomegranate Juice contains PFAS, despite marketing the juice as “All Natural” and “100% Pomegranate Juice,” among other similar claims. The Southern District of New York dismissed the plaintiffs’ first amended complaint with leave to amend for lack of standing, holding — as other courts have — that the plaintiffs failed to allege the presence of PFAS in the specific juice purchased by the named plaintiff.

On January 24, the plaintiffs filed a second amended complaint naming an additional plaintiff who alleged that independent testing demonstrated the presence of PFAS in juice he had purchased. This time, the testing consisted of liquid chromatography tandem mass spectrometry (LC-MS/MS), rather than TOF. LC-MS/MS identifies and quantifies specific known PFAS in a sample, while TOF measures the total amount of organic fluorine present and is widely accepted to produce false positives for PFAS. The LC-MS/MS testing showed that the product actually purchased contained 0.192 parts per trillion (ppt) of perfluorooctanoic acid (PFOA), which the plaintiffs claimed is a known carcinogen, among other allegations.[1] The plaintiffs’ second amended complaint sought relief on the following grounds: (1) violations of the New York Deceptive Trade Practices Act, (2) negligence per se due to violations of the Food, Drug, and Cosmetics Act and the New York Agriculture and Markets Law, and (3) unjust enrichment.

On November 25, the court largely denied the defendants’ second attempt at dismissal, finding the new complaint sufficiently alleged that POM’s marketing could be deceptive and that the juice could have been adulterated. Notably, the defendants did not challenge the plaintiffs’ testing method, i.e., the LC-MS/MS testing, nor did the court.

Naming a plaintiff who actually purchased a “contaminated” product is an easy fix for plaintiffs. However, the same cannot be said for replacing TOF testing with the LC-MS/MS method, which is not only more costly but also less likely to support a plaintiff’s bogus claim, as the test is more discerning. Nonetheless, when it comes to consumer class actions, where there is a will among the plaintiffs’ bar, there is usually a way.