Reducing the Risk of PFAS False Advertising Class Actions

With new cases filed as recently as last month, a wave of class actions continues to pummel products that allegedly contain per- or polyfluoroalkyl substances.[1] Typically, plaintiffs may either find third-party test results or commission their own testing that suggests the presence of PFAS in a product.

Subsequently, plaintiffs may challenge advertising for the product, alleging that it misleads consumers by conveying an absence of PFAS. But where simply revising advertising claims will not necessarily prevent a filing, what are companies to do?

This article reviews this type of PFAS case, and offers a starting point for companies assessing what steps might reduce risk.

Background on PFAS

Eluding any single scientific or regulatory definition, PFAS are generally considered a varied group of thousands of chemicals containing fluorinated carbon.[2] PFAS have been used in products ranging from firefighting foam to cookware to cosmetics, for their resistance to oils, water and heat.

Animal testing, testing in cell lines and human observational studies have suggested a potential association between certain types of PFAS and adverse effects on human health. Uncertainty around health effects remains, however — particularly given the wide variety of PFAS and their pervasiveness in the environment.

Regardless, in the past few years, PFAS have gained increasing media attention and regulatory scrutiny. In 2021, the U.S. Environmental Protection Agency launched its strategic road map focused on restricting and remediating PFAS in the environment.[3]

The U.S. Food and Drug Administration and the U.S. Department of Agriculture are currently assessing PFAS in the food supply — so far finding PFAS in few foods except for some types of seafood.[4] The FDA has also worked with industry to phase out certain PFAS used in food contact applications.[5]

Other federal entities are addressing patient testing for PFAS in clinical settings and investigating PFAS in emergency response equipment.[6] Numerous states, at the same time, are restricting PFAS in food packaging, cookware, textiles, cosmetics and consumer products generally.[7]

Background on Advertising Class Actions on PFAS

Not surprisingly, the increased attention paid to PFAS has not been lost on the plaintiffs bar. About two years have passed since plaintiffs began filing cases alleging that (1) testing shows the presence of PFAS in products, and (2) the PFAS content renders a range of advertising claims, from "natural" to "eco-friendly," deceptive.

At this point, many demands have been made, and over 40 cases have been filed.[8] Cases have targeted products including but not limited to fast-food packaging, protein powders, microwave popcorn, juice, sports drinks, waterproof mascara, cosmetic powders and foundation, mouthwash, floss, tampons, water-resistant apparel and other apparel, period underwear, car seats, and anti-fog spray for glasses.

A handful of cases have targeted PFAS-specific claims such as "PFAS Free" and "No long-chain PFAS." Largely, however, plaintiffs argue that claims having no specific relation to PFAS convey an absence of PFAS.

The following are among the many different types of claims challenged so far:

• "Safe and comfortable";
• "We hold ourselves to the highest quality standards";
• "Full of what's good for you, free of harsh chemicals";
• "All the flavors you crave without the ingredients you don't";
• "Ingredients sourced from nature";
• "100% Natural";
• "Feel good about what's in this bottle";
• "Working toward a sustainable future"; and
• "Good for you and good for the planet."

Plaintiffs have also targeted claims that products are certified by entities like Oeko-Tex, the Forest Stewardship Council and Fairtrade — even where neither the product advertising nor the certifiers themselves purported to guarantee an absence of PFAS.

Most plaintiffs allege that such claims are deceptive where testing allegedly showed 100 parts per million or more of organic fluorine — which, according to plaintiffs, indicates an intentionally added or material amount of PFAS.

The plaintiffs in Santiago v. Campbell Soup, filed in the U.S. District Court for the Northern District of California in June 2023, however, alleged that the threshold was lower, at 20 ppm.[9] Several cases have also alleged that testing showed the presence of specific PFAS, most often perfluorooctanoic acid, or PFOA.[10]

So far, at least a quarter of cases have been dismissed, with most courts finding a lack of standing or a lack of plausibility. In general, the more the courts engage with the unknowns of PFAS and human health, and acknowledge the vagueness or irrelevance of the challenged advertising, the more the outcomes tend to favor the defense.

In GMO Free USA v. CoverGirl, for instance, the Superior Court of the District of Columbia found in June 2022 that although the defendant pointed to "an EPA publication" stating "that there are thousands of different PFAS with potentially varying health and environmental effects," the plaintiff failed to show that the particular PFAS ingredient in a mascara "has been found to be [either] toxic or environmentally unsafe."[11]

The court further found that challenged advertising claims, like the following, were mere puffery: "To respond to evolving social and environmental challenges, we intend to keep sustainability at the heart of our product innovation."[12]

To be sure, broad environmental claims often are not considered puffery and can entail risk. However, in the context of this particular case, the court found that claims "about defendants' philosophy and aspirations cannot plausibly be interpreted as a representation that none of their products contains any PFAS chemical" within a "large class that includes some which are unsafe or unsustainable."[13]

As another example, in Dalewitz v. Procter & Gamble, the U.S. District Court for the Southern District of New York took issue with the testing the plaintiff offered to show PFAS in dental floss. The court found in September 2023 that although organic fluorine might provide a better marker for PFAS than nonorganic fluorine, the testing nevertheless failed to "identify the presence of PFAS in the [p]roduct, let alone identify the presence of specific PFAS within the family of 9,000 potential PFAS."[14]

Unfortunately, even with such holdings, there is little comfort where courts have not coalesced — and may never fully coalesce — around how to handle these cases. Many motions to dismiss remain pending, and at least two motions to dismiss were denied nearly in their entirety.[15]

Several cases have settled confidentially, and Dickens v. Thinx Inc., also in the Southern District of New York, settled publicly in June 2023, with the company agreeing to (1) pay up to $6.5 million in refunds and attorney fees, and (2) take measures to avoid intentionally added PFAS.[16]

Assessing Risk

Options companies might consider to help reduce risk include the following.

• Check if current insurance will cover PFAS advertising cases.
• Stay informed about testing being undertaken and announced publicly by entities like the University of Notre Dame, which has tested products like cosmetics, face masks and school uniforms, and similarly, track media sources like Consumer Reports for articles on PFAS testing. Such testing tends to lead to class actions.
• Assess what, if any, products within your company's offerings might be vulnerable to the presence of PFAS, taking into consideration potential environmental or other sources of PFAS, as well as what types of products class actions and rounds of public testing have targeted.
• Using procedures to maintain privilege, test suspected products for PFAS, including for specific substances like PFOA, which has a relatively high level of research on potential negative health effects. While there is no testing that can prove the absence of PFAS, the type of testing plaintiffs have undertaken can be conducted.
• Consider implementing a program to control intentionally added PFAS in materials from suppliers — recognizing that suppliers may use PFAS in their own manufacturing processes — and in final products.
• Soften sustainability messaging to focus on truthful, specific statements about how a product might be, for instance, "more sustainable" or "better for the environment," rather than fully "sustainable."
• Likewise, avoid broad messages of safety, and instead focus solely on what specific testing, certification or other safety measures have been taken.
• Along the same lines, where an overly broad message might be conveyed, carefully describe what certifications used in advertising mean, and consider working with certifiers to confirm their marketing avoids broad messaging like claims to be "sustainable" or "safe."

This article is reprinted with permission of Law360. It was first published by Law360 (subscription required) on February 16, 2024. 

[1] See, e.g., Compl., Morton v. Health-Ade, No. 24-cv-173 (S.D.N.Y. Jan. 9, 2024).

[2] George G. Misko, Navigating U.S. Federal and State Regulations of PFAS in Applications Involving Food, Food Safety Magazine, Oct./Nov. 2022, https://www.khlaw.com/insights/navigating-us-federal-and-state-regulations-pfas-applications-involving-food?language_content_entity=en.

[3] Fact Sheet: Biden-⁠Harris Administration Launches Plan to Combat PFAS Pollution (Oct. 18, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/18/fact-sheet-biden-harris-administration-launches-plan-to-combat-pfas-pollution/.

[4] FDA, Questions and Answers on PFAS in Food (last updated May 31, 2023), https://www.fda.gov/food/process-contaminants-food/questions-and-answers-pfas-food.

[5] FDA, Authorized Uses of PFAS in Food Contact Applications (last updated May 31, 2023), https://www.fda.gov/food/process-contaminants-food/authorized-uses-pfas-food-contact-applications.

[6] See supra n. 1.

[7] See supra n. 3. As noted in the article, states have usually defined PFAS "as a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom."

[8] See, e.g., Compl., Rivera v. Knix Wear, No. 22-cv-02137 (N.D. Cal. April 4, 2022); Compl., Hussain v. Burger King, No. 22-cv-02258 (N.D. Cal. April 11, 2022); Compl., Brown v. CoverGirl, No. 22-cv-02696 (S.D.N.Y. April 1, 2022); Compl., Esquibel v. Colgate-Palmolive, No. 23-cv-00742 (S.D.N.Y. Jan. 27, 2023); Compl., Dalewitz v. Procter & Gamble, No. 22-cv-07323 (S.D.N.Y. Aug. 26, 2022); Compl., Lowe v. Edgewell Personal Care, No. 23-cv-834 (N.D. Cal. Feb. 24, 2023); Compl., Dawood v. Gamer Advantage, No. 22-cv-562 (E.D. Cal. March 28, 2022).

[9] Compl., Santiago v. Campbell Soup, No. 23-cv-3295 (N.D. Cal. June 30, 2023).

[10] See, e.g., Compl., Brown v. CoverGirl, No. 22-cv-02696 (S.D.N.Y. April 1, 2022); Compl., Hicks v. L'Oreal, No. 22-cv-1989 (S.D.N.Y. March 9, 2022).

[11] GMO Free USA v. CoverGirl, No. 2021 CA 004786 B, at *2, *4 (D.C. Sup. June 1, 2022).

[12] Id. at 6.

[13] Id. 

[14] Dalewitz v. Procter & Gamble, No. 7:22-cv-07323 (NSR), 2023 WL 6215329 (S.D.N.Y. Sept. 22, 2023).

[15] See Dawood v. Gamer Advantage, No. 22-cv-562, 2022 WL 3108846 (E.D. Cal. Aug. 4, 2022) (motion to dismiss denied except as to two claims conceded by plaintiff); Kanan v. Thinx Inc., No. 20-cv-10341, 2021 WL 4464200 (C.D. Cal. June 23, 2021).

[16] Order, Dickens v. Thinx Inc., No. 22-cv-04286-JMF (S.D.N.Y. June 8, 2023) (final approval of settlement).