On January 27, 2023, plaintiffs in the Southern District of New
York announced their displeasure with the inconvenient fact that
Tom's Wicked Fresh! mouthwash contains measurable
concentrations of PFAS. They channeled their displeasure by
bringing a class action suit against Colgate-Palmolive
Company and Tom's of Maine, Inc. for fraud and unjust
enrichment based on several state consumer protection laws, the
federal Magnuson-Moss Warranty Act, and common law tort. Plaintiffs
assert that "natural" Tom's Wicked Fresh! mouthwash
is anything but natural, in that it contains per- and
polyfluoroalkyl substances or "PFAS," a category of
synthetic chemicals are not natural.
Plaintiffs claim that Tom's Wicked Fresh! mouthwash is a
much-touted "natural" product and that its marketers have
unjustly financially gained through deceptive and fraudulent
marketing practices by leading consumers to believe that their
product is natural when it actually contains hazardous substances.
PFAS are not included in the product's list of nine ingredients. That an amazing range of
incidental contaminants (which PFAS could well be considered) end
up in food and drug products that the U.S. Food and Drug
Administration (FDA) expressly excludes from ingredient disclosure,
including whole insects, rodent hairs, insect fragments, and rodent
dung, is apparently beside the point because, presumably, it is natural. The Center for Disease Control and
Prevention (CDC) states that PFAS is dangerous because these
substances do not break down and linger stubbornly in the
environment, they can travel through soil and groundwater, and they
build up (bioaccumulate) in fish, wildlife, and humans.
Plaintiffs went looking for PFAS when they sent a mouthwash sample
out for independent testing. Given their ubiquity, PFAS
unsurprisingly were detected. Perfluorooctanoic acid (PFOA), a
particularly potent variant and standard bearer of the PFAS class
of toxic substances, was detected. The U.S. Environmental
Protection Agency's (EPA) recommended lifetime health advisory
level for PFOA is 0.004 parts per trillion; the tested sample
revealed that "the Product contains PFOA in amounts more
than 100 times the EPA's recommended levels [emphasis in
original]."
To establish fraud, plaintiffs must prove defendants intentionally
added PFAS to its product or that the defendants knew PFAS were in
their product and failed to take corrective measures to remove it.
There are at least two possible PFAS contamination sources. The
first is if Tom's used a fluorinated container to transfer the
mouthwash before it was bottled. PFAS is known to migrate from
fluorinated containers because of the fluorination process. The
second possibility is through secondary contamination from plant
process water used to make the mouthwash. Additional testing is
needed to identify the source. Arguably, in either case, Tom's
did not engage in fraudulent business practices. It may well not
have known PFAS contaminated its product because either migration
pathway is speculative or completely unexpected. Given their
ubiquity, every geographic area of the world and most things in it
are contaminated with PFAS, including everyone reading this
blog.
Why does this matter? One very real outcome of the case, win or
lose, is the end of "natural" product claims. Can beef be
"natural" if the cow that it came from is
PFAS-contaminated? What about that fresh, "natural"
spring water we all love -- does it contain PFAS? Probably, but
does that make it not "natural"? We will leave for
another blog whether a win for the plaintiffs punishes wrongly
businesses that are victims of PFAS manufacturers and others whose
PFAS products are now the source of seemingly endless
contamination, litigation, and regulation.
Alternatively, if defendants reasonably believed, or should have
known, that there were detectable PFAS in their supply chains and
failed to act to remove them, then the claims may stick.
Fluorinated containers are associated with PFAS contamination. If
the defendants use such container technology, query whether they
exercised due care in failing to use other technologies. If the
contamination was from plant process water, they could and perhaps
should have tested the intake water and filtered the PFAS out to
ensure product purity.
A jury will decide. Even before it does, though,
"natural" product claims may be a thing of the past.
Businesses can be expected to be understandably nervous about
passing the PFAS purity test.
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