PFAS litigation is on the rise, raising questions about the science and motivations behind these cases. Per- and polyfluoroalkyl substances (PFAS) were initially embraced in the market for their ability to make products resistant to heat, oil, stains, grease, and water. However, they have recently become a focus for consumer litigation, capturing the attention of the plaintiffs’ bar. PFAS can be found in numerous consumer products, including food packaging and textiles. The unique chemistry that gives PFAS their remarkable properties also allows them to persist in the environment, earning them the label of “forever chemicals.” As a result, PFAS has become an attractive target for litigation, despite the fact that it encompasses various chemicals with different profiles.
The Controversies Surrounding Consumer Class Actions
Allegations Without Manifested Injury
While some consumer product cases involve actual bodily injury, most center around claims of purchasing a product with PFAS content. The argument put forth by plaintiffs is that they would not have bought the product had they known about the presence of PFAS. However, this speculative argument is contentious for several reasons. Since targeted products often do not claim to be free of PFAS, the argument relies on the presumption that any presence of PFAS renders the product unsafe and unsuitable. In some cases, plaintiffs argue that general claims like “sustainable,” “organic,” or “natural” are misleading due to the detection of PFAS. However, some courts question this practice, recognizing that the unintentional presence of a contaminant does not negate unrelated positive claims made by companies.
Reliance on Third-Party Testing
Plaintiffs frequently initiate litigation without conducting their own testing. Instead, they rely on invalidated third-party testing, often conducted or published by watchdog organizations, media outlets, or bloggers. These sources, such as Consumer Reports, Toxin Free USA, and Mamavation, provide test results and identify products containing PFAS. Plaintiffs’ attorneys use these results as a basis for plug-and-play class-action claims, which are also circulated by media outlets in unflattering articles.
Generalized Testing for Organic Fluorine
Plaintiffs often conduct more generalized testing for total organic fluorine rather than specifically testing for PFAS. It’s important to note that organic fluorine is not harmful, and testing for it can yield positive results even in the absence of PFAS. Therefore, plaintiffs’ failure to test for all PFAS, including those alleged to be harmful, weakens their claims.
Courts have also raised concerns about these practices. For instance, in a recent case, a District of Columbia court highlighted that different PFAS may have varying health effects. The court stated that polytetrafluoroethylene (PTFE), a type of PFAS approved by the FDA, has not been found to be toxic or environmentally unsafe. Similarly, another court in the same jurisdiction dismissed claims against a dental floss manufacturer, as the study cited by the plaintiffs did not support their claims. The tested dental floss was never specifically tested for PFAS, but for fluorine, which only suggested that PFAS “might be present.”
Defendants often challenge these dubious approaches by questioning plaintiffs’ standing during the motion to dismiss phase. Defendants argue that plaintiffs lack standing without adequately pleading an injury in fact. While some courts find defendants’ arguments persuasive, others allow cases to proceed with minimal pleading effort and claim foundation.
The prevalence of PFAS-based litigation poses regulatory and legal risks for industries that have embraced these substances. Companies must now be attentive to the potential of PFAS litigation, even if they do not intentionally use PFAS. Consulting experts in product labeling, regulation, and class-action litigation, as well as insurance coverage specialists, is vital in managing this risk. Keeping a close eye on litigation and regulatory developments is equally important.
For more information about PFAS litigation, visit Garrity Traina. They are experts in navigating the evolving legal landscape.