From mascara to microwave popcorn, and from water to wrappers, the glut of litigation related to the presence of PFAS (per- and polyfluoroalkyl substances) has forced companies and attorneys to pay attention to prospective consumer class-action suits.
PFAS are a category of chemicals known for their flame-retardant, water-resistant and stain-resistant qualities. They have long been used for applications across myriad industries, including construction, electronics and pharmaceuticals, to name a few. They are commonly used in clothing, cosmetics, and food packaging and, due to their longstanding widespread use in all manner of products, are ubiquitous in the environment. Allegations regarding adverse health impacts from exposure have given rise to litigation and regulation.
Recently, plantiffs' counsel have sought to identify new categories of defendants and claims. While scrutiny will be trained on PFAS manufacturers, claimants may go after new companies, products and industries to allege that the presence of PFAS in the labeled product renders the labeling false or misleading – as, they argue, the presence of PFAS must be disclosed on the label. Intensifying matters, the Biden Administration has appointed government officials who have experience in dealing with PFAS issues, presumably for broader regulation and litigation. Federal regulatory initiatives may give way to enhanced legal liability; as well as a groundswell of private litigation.
What should the defense strategy be for consumer class action claims alleging misleading or false product labeling, based on PFAS? How are these lawsuits different from other class action claims? Below, our analysis of key legal nuances:
In the case of an alleged affirmative misrepresentation, the inquiry is the same on a pleadings challenge: whether the labeling of a product containing undisclosed PFAS is likely to mislead a reasonable person. Plaintiffs typically invoke the “premium price” theory, meaning the plaintiff claims he or she would not have purchased the item, or would have paid less, had the PFAS been disclosed. These allegations provide the defense with an opportunity to attack the damages model on class certification, similar to other types of consumer class actions.
For example, a class action lawsuit is developing against the retailer Spanx, alleging the presence of PFAS in several lines of its seamless leggings. As mentioned above, the suit does not focus on contamination, but rather misrepresentation to the consumer. Regardless of the outcome, the efforts could force Spanx to fine-tune its marketing message by subtly disclosing the presence of PFAS. If so, the company could look to McDonald's – likely the rare instance in which tummy control can align with fast food! As McDonald's has argued in defense of recent litigation, “forever chemicals” comprise a broad and expansive category of which the majority – including those found in its grease-resistant packaging – are known to be safe and approved by regulators. In response to an Illinois lawsuit, McDonald's moved to dismiss the action, arguing there's no claim of harm or injury, only attempts to dispute the price due to lack of awareness of PFAS. McDonald's emphasized that the PFAS compounds in its packaging are approved by the U.S. Food and Drug Administration.
Bottom line: in addition to proven defense strategies, the need for testing and recorded regulatory approval can yield additional strategies for class-action defense of PFAS litigation. Our attorneys can provide guidance and support at every stage, from proactive monitoring to litigation strategy.
EPA Health Advisory Issued
On June 15, 2022, the United States Environmental Protection Agency issued lifetime health advisory levels (HALs) for PFOA and PFOS, the two most studied PFA substances, as well as other chemicals known as “GenX chemicals.” These HALs, which EPA set at 0.004 parts-per-trillion (ppt) for PFOA and 0.02 ppt for PFOS, are several orders of magnitude stricter than the 70-ppt level established by the Obama administration. EPA also set separate, first-time HALs of 2,000 ppt for perfluorobutane sulfonic acid (PFBS) and 10 ppt for hexafluoropropylene oxide dimer acid and its ammonium salt, the so-called “GenX chemicals.”
As stated in the advisory, EPA's new health advisory “provides technical information that federal, state, and local agencies can use to inform actions to address PFAS in drinking water, including water quality monitoring, optimization of existing technologies that reduce PFAS, and strategies to reduce exposure to these substances. EPA is encouraging states, Tribes, territories, drinking water utilities, and community leaders that find PFAS in their drinking water to take steps to inform residents, undertake additional monitoring to assess the level, scope, and source of contamination, and examine steps to reduce exposure.”
The newly-announced HALs drew immediate criticism from a slew of constituencies, mainly due to the fact that the HALs are dependent on a state of detection and analysis precision that does not currently exist.
Responding to this criticism, Linda Birnbaum, the former director of the National Institute for Environmental Health Sciences (NIEHS), explained that the levels are “totally non-regulatory,” adding that the levels provide a signal to industry concerning the need to phase out PFAS and to states for the need to regulate at a level more stringent than the 70-ppt level that many states have adopted. It should be noted that New York has established a maximum contaminant level (MCL) of 10-ppt for PFAS.
While these HALs do not carry any regulatory authority, they may signal an intent on EPA's part to promulgate a nationwide drinking water standard that mirrors, or even goes beyond, the MCLs established by the most stringent state standards. EPA announced last fall an intent to do so as part of the agency's PFAS Roadmap.
Bottom line: EPA's HALs, while carrying no regulatory weight, appear to signal a coming nationwide drinking water standard for PFAS and GenX chemicals. Industries potentially affected by such regulatory action should be implementing compliance strategies in consultation with technical and legal consultants knowledgeable in this emerging realm of regulation.
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