Prime Time for Prime Hydration: YouTubers Clash With PFAS Regulations

PFAS, commonly referred to as “forever chemicals,” are a large family of synthetic organic chemicals containing carbon chains in which most or all of the hydrogen atoms have been replaced by fluorine. PFAS tend to be very stable and chemically inert over a wide range of temperatures, which makes them useful in a wide range of applications but very persistent in the environment and in the human body. The US Environmental Protection Agency (EPA) has currently identified more than 12,000 different PFAS.

As the crackdown against PFAS continues at both federal and state levels, popular YouTube personalities Logan Paul and KSI (Olajide Olayinka Williams Olatunji), along with their energy drink company, Prime Hydration, have been targeted by class action lawsuits throughout the United States, most recently this April in the US District Court for the Southern District of New York.

Prime Hydration Lawsuits

The pending lawsuits seek to hold Prime Hydration liable for millions of dollars in civil penalties for allegedly marketing energy drinks containing certain PFAS at levels exceeding what EPA permits in the public drinking water supply, according to testing commissioned by the plaintiffs.

In response to the April class action complaint, Prime Hydration has moved to dismiss, arguing that no cognizable injury was alleged, nor were facts showing a concrete and imminent threat of future harm. The decision on this motion to dismiss remains pending.

PFAS Phaseout Bill

On the heels of the lawsuit filed against Prime Hydration in April, the Forever Chemical Regulation and Accountability Act (FCRAA) was introduced in both the US House of Representatives and US Senate. (See under PFAS Phaseout Bill.) As described in greater detail in our recent consumer products alert, FCRAA endeavors to eliminate all “non-essential” uses of PFAS. If passed, it would require PFAS manufacturers and users to petition EPA to deem their PFAS uses as essential. Under the Act, manufacturers and users whose petitions are granted would be required to disclose certain PFAS use details through reports to EPA. In some instances, they would also need to submit a phase-out schedule to demonstrate that they will cease any nonessential use of PFAS within ten years. Similar state legislation is also in the works and garnering support.

Next Steps

As evidenced by recent lawsuits as well as pending federal and state legislation, PFAS regulation is a focal point for regulators and plaintiffs’ lawyers alike. Consumer products industry players working to navigate this rapidly evolving legal landscape are urged to keep a close eye on legal developments pertaining to PFAS restrictions and reporting requirements at both federal and state levels. Companies are encouraged to independently test their products for PFAS before going to market. While the testing process may seem costly at the outset, it could save companies from negative publicity and exposure to liability down the line.

The ArentFox Schiff Beverage & Food and Consumer Products teams are monitoring litigation in this space, as well as the ever-evolving PFAS regulatory landscape, and will provide updates as they become available. Please contact your ArentFox Schiff attorney or any of the authors with questions or concerns.