On Monday, consumer group, Ecological Alliance, LLC, filed a lawsuit against the makers of the Carefree brand of menstrual liners, Edgewell Personal Care Brands, LLC, alleging that the liners contained perfluorooctanoic acid (PFOA), one of the per – and polyfluoralkyl substances (PFAS) chemicals on the California Proposition 65 (Prop 65) list.
PFAS are man-made chemicals that have been used for decades and found in many different commercial, industry, and consumer products such as non-stick cookware and water repellent clothing. PFAS are known as "forever chemicals" because they do not readily break down or biodegrade. PFAS are found in the soil, groundwater, and air across the United States. Studies suggest that PFAS exposure may result in adverse health effects in humans and animals.
The complaint alleges that Edgewell failed to warn California citizens of the presence of PFOA exposures in the panty liners, which are "used by women for up to 8-10 hours at a time."
PFOA is included on the Prop 65 list because exposure to the chemical may cause cancer, birth defects, or other reproductive harm. Pursuant to Prop 65, businesses with 10 or more employees must provide a "clear and reasonable" warning before exposing Californians to PFOA. Companies failing to comply face potential civil penalties of up to $2,500 per "violation" in addition to the plaintiff's attorneys' fees.
The lawsuit coincides with California Gov. Gavin Newsom's signing of AB 2515, which "prohibits the manufacture, distribution, sale, or offering for sale of any menstrual products" in California containing regulated PFAS above specified levels. This follows other actions by the State to reduce or eliminate PFAS from consumer products such as textiles and food packaging.
Moreover, the lawsuit follows other recent lawsuits targeting consumer products, such as dietary supplements, shower liners, bibs, nonstick frying pans, jackets, duffle bags, makeup, and personal care products.
One of the key challenges defendants face in PFAS-related consumer products lawsuits is the lack of an approved method for testing PFAS in solid matrices. Our office has reviewed plaintiff lab sheets using analytical methods that are unreliable at best. Without a standardized testing procedure, it becomes difficult to accurately assess the presence and levels of PFAS in products or materials. This gap in testing protocols complicates the defense, as it limits the ability to challenge allegations or provide reliable evidence, often leaving defendants at a disadvantage in these cases. The recent suits targeting PFAS in consumer products and the new regulations highlight that the alleged presence of these chemicals in consumer products may subject companies to significant liability. Companies should have a compliance plan in place to help avoid costly liability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
