A Maine law that required (at least until recently amended) consumer products companies to disclose the presence of “intentionally added” per- and perfluoroalkyl substances (PFAS) in products sold within the state has led to the filing of a consumer class action lawsuit against the disclosing company. Butler & Pai v. BIC USA, INC., No. 4:24-cv-02955 (N.D. Cal.) This lawsuit may be a harbinger of future litigation aimed at companies who must make similar disclosures in order to comply with a growing number of state PFAS disclosure mandates, such as in New York, Washington, Vermont, Connecticut, Colorado, California, Maine, Maryland, Minnesota, Rhode Island and Hawaii. In general, these state laws require companies selling products in the states to disclose if any of those products contain “intentionally added” PFAS. Although the term “intentionally added” remains ambiguous, defenders of these laws have cited alleged benefits to consumer choice – arming consumers with the information they need in order to avoid products that have PFAS. However, the new consumer class action lawsuit signals a darker side to disclosure: plaintiffs may sue companies making such disclosures - ostensibly for not having made such disclosures previously.

PFAS is a generic term that refers to potentially thousands of different chemicals that fall within the rubric of a particular chemical family, once routinely used in hundreds of consumer products. Although PFAS chemicals once enjoyed widespread use, they are being phased out worldwide based on emerging science that implicates some, but not all, PFAS chemicals as causing adverse health effects. Rather than wait to complete studies of every PFAS chemical, the EPA and other administrative bodies (including many states) have begun to take action to restrict the sale and use of the entire PFAS category, which has even led to the addition of PFAS contamination as a risk to be evaluated during environmental due diligence. Complicating matters is that the stability and environmental persistence of various PFAS chemicals have led them to be referred to colloquially as “forever chemicals.” In fact, the National Health and Nutrition Examination Survey (NHANES) has measured PFAS levels in blood in the US population since 1999, finding various PFAS chemicals to be commonly detected in the blood of US residents. This has, perhaps unsurprisingly, resulted in a wave of PFAS litigation by plaintiffs seeking to capitalize on the newfound public interest. 

Some states have jumped on the bandwagon by enacting laws that require disclosure of PFAS that has been “intentionally added” to consumer products. These laws have typically been limited to so-called “intentionally added” PFAS, an ambiguous standard that is difficult to comply with. A company's decision regarding whether to disclose can be complicated and is now made even more so by the recently filed BIC case.

In the BIC complaint, plaintiffs allege that they first learned of PFAS in BIC razors through the company's disclosure to the state of Maine pursuant to its newly enacted PFAS disclosure law. That law initially required disclosure as soon as January 2023, but in any event, no later than January 2025. BIC allegedly made a disclosure under the law; that disclosure was reported by the local newspaper; and the plaintiffs allegedly obtained BIC's disclosure submission through a state FOIA submission — arguing in their complaint that the disclosure constitutes the company's “admission” that it sells razors with “intentionally added” PFAS.

The plaintiffs allege that both national and California classes were injured by BIC because it allegedly failed to disclose in earlier advertising that it “intentionally added” PFAS to razors. There is no allegation of personal injury; just false advertising — a failure to disclose.

This is the first case of which we are aware in which state-mandated disclosure of PFAS has led to allegations of false advertising. It illustrates, quite dramatically, a risk inherent in making such disclosures. This is likely to be just the first among many lawsuits of this nature likely to be filed in the future. As plaintiffs' law firms opportunistically scan the environment for cases and plaintiffs, one can anticipate more “false advertising” filings like this.