Navigating the PFAS Landscape: Emerging Trends in Litigation

The per- and polyfluorinated substances (PFAS) landscape is rapidly developing as manufacturers and sellers of consumer products face increased litigation. One emerging pattern is lawsuits alleging a failure to disclose the presence of PFAS in products and the potential targeting of products that advertise to be high quality or natural. Additionally, plaintiffs’ testing for PFAS has come under scrutiny, resulting in dismissals.

Advertising

While some PFAS lawsuits have alleged physical injuries, those lawsuits faced challenges in proving a causal connection between PFAS and the alleged injuries. In a shift, recent lawsuits focus on products’ packaging and labeling, arguing that manufacturers failed to disclose the presence of PFAS. Plaintiffs claim that if the presence of PFAS had been disclosed, they would not have purchased the product or, at least, would not have paid the same price for the product. In these packaging and labeling lawsuits, products that advertise to be of a particular quality or imply natural, organic, or healthy ingredients may be more targeted than others for this type of litigation. In a lawsuit regarding PFAS in baby wipes sold under Costco’s Kirkland brand, the complaint makes various references to the product’s claim of natural ingredients. The complaint asserts that the packaging and labeling of these products are thus particularly misleading.

As these trends demonstrate, consumer product manufacturers and sellers should focus on accurate and adequate labeling with respect to PFAS. By remaining vigilant about PFAS content and understanding what the law requires them to disclose (and how), manufacturers can mitigate exposure to similar lawsuits.

Test Samples

Various manufacturers have argued that plaintiffs bringing PFAS litigation lack standing, asserting that their testing for PFAS is inadequate or overbroad. In a case alleging that a company’s juice product contained PFAS, the Southern District of New York dismissed the complaint based on lack of standing. The court reasoned that the plaintiff relied on only one test sample of the subject juice, which could not be connected to the product that was purchased. In turn, plaintiffs are learning from past mistakes and ensuring the complaint asserts that the samples sent for testing are the actual products purchased by the plaintiff. It remains to be seen whether this is sufficient to survive dismissal.

Total Organic Fluorine Testing

The reliability of fluorine testing presents another PFAS testing issue. Some complaints have alleged a presence of PFAS based on tests finding “total organic fluorine” (TOF). TOF does not refer to a specific PFAS chemical but applies to a broad class of fluorine-containing chemicals that includes PFAS. Plaintiffs assert that TOF testing is widely accepted as the reliable method to detect a PFAS chemical in a sample. In reality, the consensus among the scientific community seems to be that while measurement of TOF is a reliable screening method for the presence of PFAS, it is not definitive, since it will also capture any organic fluorine compounds that are not PFAS and so can result in false positives. As current litigation progresses, we expect defendants to put forth this argument, among others.

The Consumer Products group at ArentFox Schiff is available to answer questions about how your company can address PFAS litigation trends. Please feel free to reach out to the authors or any attorney on our team.