On several instances, we have written regarding consumer fraud PFAS class action lawsuits filed in several states. The number of product types targeted for these lawsuits are growing and diverse in terms of the industries targeted. While there has been at least one significant settlement in these lawsuits to date, there have been mixed court rulings on the viability of these lawsuits with some courts dismissing the claims outright while others have allowed the cases to proceed.

Recently two new PFAS consumer fraud lawsuits were filed, both alleging PFAS contamination of juice products and deceptive marketing practices. With the number of consumer fraud lawsuits likely to continue increasing for the time being, consumer goods industries, insurers, and investment companies interested in the consumer goods vertical must pay careful attention to these lawsuits.

Consumer Fraud PFAS Lawsuits – Overview

The consumer fraud PFAS lawsuits filed to date follow a very similar pattern: various plaintiffs bringing suit on behalf of a proposed class allege that companies market consumer goods as safe, healthy, environmentally friendly, etc., or that the companies themselves market their corporate practices as such, yet it is allegedly discovered that certain products marketed with these buzzwords contain PFAS. The lawsuits allege that since certain PFAS may be harmful to human health and PFAS are biopersistent (and therefore environmentally unfriendly), the companies making the good engaged in fraud against consumers to entice them to purchase the products in question.

In the Complaints, plaintiffs typically allege the following counts:

• Violation of state consumer protection laws and the federal Magnuson-Moss Warranty Act

• Violations of various state consumer protection laws

• Breach of warranty

• Fraud

• Constructive fraud

• Unjust enrichment

The plaintiffs seek certification of nationwide class action lawsuits, with a subclass defined as consumers in the state in which the lawsuits are filed. In addition, the lawsuits seeks damages, fees, costs, and a jury trial. Representative industries and cases that have recently been filed include:

• Cosmetics industry:

  • Brown v. Cover Girl, New York (April 1, 2022)

  • Anderson v. Almay, New York (April 1, 2022)

  • Rebecca Vega v. L’Oreal, New Jersey (April 8, 2022)

  • Spindel v. Burt’s Bees, California (March 25, 2022)

  • Hicks and Vargas v. L’Oreal, New York (March 9, 2022)

  • Davenport v. L’Oreal, California (February 22, 2022)

• Food packaging industry:

  • Richburg v. Conagra Brands, Illinois (May 6, 2022)

  • Ruiz v. Conagra Brands, Illinois (May 6, 2022)

  • Hamman v. Cava Group, California (April 27, 2022)

  • Azman Hussain v. Burger King, California (April 11, 2022)

  • Little v. NatureStar, California (April 8, 2022)

  • Larry Clark v. McDonald’s, Illinois (March 28, 2022)

• Food and drink products:

  • Bedson v. Biosteel, New York (January 27, 2023)

  • Lorenz v. Coca-Cola, New York (December 28, 2022)

  • Toribio v. Kraft Heinz, Illinois (November 29, 2022)

• Apparel products:

  • Krakauer v. REI, Washington (October 28, 2022)

• Hygiene products:

  • Esquibel v. Colgate-Palmolive Co., New York (January 27, 2023)

  • Dalewitz v. Proctor & Gamble, New York (August 26, 2022)

• Feminine hygiene products:

  • Gemma Rivera v. Knix Wear Inc., California (April 4, 2022)

  • Blenis v. Thinx, Inc., Massachusetts (June 18, 2021)

  • Destini Canan v. Thinx Inc., California (November 12, 2020)

Two Newest Consumer Fraud PFAS Cases

Coca Cola finds itself the latest company to be sued for allegedly fraudulent claims pertaining to one of its products – Simply Tropical juice. The New York case alleges that the company advertised the product as free from artificial and synthetic ingredients, and that the company engaged in a campaign to promote its products as “all natural”, yet testing revealed that the Simply Tropical juice product contained PFAS. Further, Coca-Cola is alleged to have branded its juice product as safe and healthy for human consumption, yet the lawsuit alleged that PFAS have several adverse health effects.

Similarly, in California, Bolthouse Farms found itself brought into a PFAS consumer fraud class action lawsuit in which it is alleged that the company’s Green Goddess smoothie products are marketed as made with 100% real juice, yet the products in fact contain levels of PFAS. The lawsuit further alleges that the company has for years engaged in a practice of marketing itself and its products as healthy, natural, and that its product packaging (which depicts fruits and farmlands) lead consumers to believe that the drink products are all natural and healthy.

Both lawsuits allege claims similar to the ones mentioned above regarding general historical allegations brought in PFAS consumer fraud lawsuits.

Conclusion

Several major companies now find themselves embroiled in litigation focused on PFAS false advertising, consumer protection violations, and deceptive statements made in marketing and ESG reports. The lawsuits may well serve as test cases for plaintiffs’ bar to determine whether similar lawsuits will be successful in any (or all) of the fifty states in this country. Companies must consider the possibility of needing to defend lawsuits involving plaintiffs in all fifty states for products that contain PFAS. It should be noted that these lawsuits would only touch on the marketing, advertising, ESG reporting, and consumer protection type of issues. Separate products lawsuits could follow that take direct aim at obtaining damages for personal injury for plaintiffs from consumer products. In addition, environmental pollution lawsuits could seek damage for diminution of property value, cleanup costs, and PFAS filtration systems if drinking water cleanup is required.

It is of the utmost importance that businesses along the whole supply chain in the consumer products industry evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate PFAS at an ever-increasing pace. Similarly, state level EPA enforcement action is increasing at a several-fold rate every year. Now, the first wave of lawsuits take direct aim at the consumer products industry. Companies that did not manufacture PFAS, but merely utilized PFAS in their manufacturing processes, are therefore becoming targets of costly enforcement actions at rates that continue to multiply year over year. Lawsuits are also filed monthly by citizens or municipalities against companies that are increasingly not PFAS chemical manufacturers.