THOMSON REUTERS
Westlaw Today
Enter to open, tab to navigate, enter to select
Current litigation trends for PFAS-containing consumer products
2023 PRINDBRF 0224
• Practitioner Insights Commentaries
• May 1, 2023
(May 1, 2023) - Alexandra Cunningham and Merideth Daly of Hunton Andrews Kurth LLP discuss litigation trends with consumer products containing per- and polyfluoroalkyl substances, analyzing cases decided within the last six months.
In 2022, the frenzy of regulatory and litigation activity involving per- and polyfluoroalkyl substances (PFAS) continued in earnest. The focus of PFAS litigation to date has been primarily environmental, arising from alleged contamination of drinking water sources.
Lawsuits have been filed by individuals, water authorities, and states and municipalities against PFAS and PFAS-containing product manufacturers, site owners and others to recover for property damage and environmental cleanup — and in some instances, for medical monitoring.
In 2019, we also began to see filings related to PFAS in consumer products. This trend has since continued, with claim filings — primarily putative class actions — increasing in 2022. To be clear, these lawsuits do not allege personal injury or even any actual exposure to PFAS.
Instead, they allege that manufacturers and/or retailers failed to inform consumers that their products contained PFAS — or that the presence of PFAS rendered certain marketing claims (e.g., "all natural") untrue — and thus violated state consumer protection statutes and amounted to false advertising, fraud, breach of warranty and the like.
To date, an array of consumer products have been targeted, including dental floss, disposables plates and bowls and other food and beverage contact products, clothing, cosmetics and car seats. Likewise, various categories of defendants have been named, including product manufacturers and retailers.
These claims are just the latest example of a growing trend by opportunistic plaintiffs' firms to attempt to cash in on findings of trace amounts of chemicals in consumer products, despite the absence of any actual or potential harm.
A series of similar lawsuits were recently brought following reports of trace amounts of benzene in aerosolized personal care products, including dry shampoo, hair spray, deodorant and sunscreen. The cases often follow plaintiff-funded or consumer advocacy group product testing that is then widely circulated for national media attention.
The available damages generally amount to very little on an individual claimant basis, but because they can be brought as class actions (unlike personal injury claims) and carry the potential for substantial attorneys' fees and statutory treble damages, a cottage industry of plaintiffs' firms has emerged to pursue them when traditional tort claims cannot be made.
Despite the increase in claims, PFAS-related consumer product litigation is still in its infancy, and as such, its future trajectory is unclear. For example, to date, these claims have been filed by only a handful of plaintiffs' firms and in only a few jurisdictions, including primarily federal courts in California, New York and Illinois. We have not yet seen large numbers of plaintiffs' firms jump on the filing bandwagon or a proliferation of claims nationally.
Additionally, it remains to be seen whether the claims will progress substantively. The earliest claims filed in 2019 and 2020 either resolved or were otherwise voluntarily dismissed at the pleading stage. Likewise, currently pending claims are still largely in the motion to dismiss stage, and there is no clear consensus as to whether courts will allow them to proceed to discovery.
That said, the first opinion we have seen in these cases was issued in late-2022 by the U.S.D.C. for the Eastern District of Pennsylvania in Seidl v. Artsana USA, Inc.,1 which dismissed the claims at issue in their entirety. The plaintiff alleged that PFAS were present in a Chicco car seat that she purchased.
Because plaintiff believed she had paid a premium for a car seat that was "chemical free," she brought claims for violation of state consumer protection statutes, fraud, misrepresentation, breach of express and implied warranty, and unjust enrichment. Defendant moved to dismiss on the grounds that plaintiff (1) had not suffered an injury and thus did not have standing and (2) failed to state a claim on any of the legal theories asserted.
The court disagreed on the first point, finding that plaintiff had sufficiently alleged economic harm, but agreed on the second. Initially, the court found that defendant was not under any legal obligation to disclose the presence of PFAS in its car seats, and as a result, its alleged failure to do so was not sufficient to support plaintiff's claims.
The court then assessed the defendant's alleged misrepresentation that the car seat did not contain PFAS. The court found that plaintiff failed to allege that she relied on any of defendant's purportedly defective statements in advance of purchasing the car seat, and thus, dismissed her statutory, fraud and misrepresentation claims.
The court also dismissed the warranty claims after finding that plaintiff failed to provide the requisite pre-suit notice of breach. Finally, the court dismissed plaintiff's unjust enrichment claim as derivative of her other claims, and thus failing for the same reasons.
Since the Seidl opinion issued, two other courts have dismissed similar PFAS consumer product claims, on varied grounds.2 By contrast, at least one court has since denied a motion to dismiss in part and allowed a subset of such claims to proceed.3 We expect to see more opinions issued in similar pending cases over the course of 2023 and anticipate that they are likely to shape the trajectory of PFAS-related consumer product claims for the future.
Another important trend to watch in 2023 is the viability of claims for medical monitoring in this context. Although plaintiffs do not allege that they have suffered health effects from exposure to PFAS, they nonetheless seek damages for ongoing monitoring for personal injuries. If allowed to proceed, these claims have the potential to drive up consumer product case values beyond those asserting mere economic harm.
To minimize litigation risk in this area, companies involved in the sale of consumer products should obtain assurances from their suppliers that products comply with all regulations relevant to PFAS in consumer products, and further that all marketing claims have been vetted to account for the ubiquitous presence of PFAS throughout society.
Companies should also assess supplier indemnity provisions to ensure that they extend to these product claims. Companies throughout the supply chain might also consider opportunities for pursuing state-level reform measures that would prevent essentially no-injury class claims like these.
Finally, companies should be prepared to aggressively defend any consumer claims they face, with the goal of discouraging similar claims from escalating into the next tort litigation wave.
Notes
1 No. 5:22-cv-2586, (Nov. 30, 2022).
2 See Solis v. Coty, Inc., et al., No. 22-cv-0400, (S.D. Cal. Mar. 7, 2023) (dismissing claims arising from plaintiff's purchase of PFAS-containing cosmetic products because plaintiff failed to plead any injury-in-fact sufficient to demonstrate standing); Richburg, et al. v. Conagra Brands, Inc., No. 22-cv-2420, and Ruiz v. Conagra Brands, Inc. No. 22-cv-2421, (N.D. Ill. Feb. 8, 2023) (dismissing claims arising from plaintiffs' purchase of microwave popcorn for failure to state a claim because the alleged presence of PFAS in popcorn bags would not cause a reasonable consumer to be deceived by defendant's labeling claims).
3 See Hamman, et al. v. Cava Group, Inc., No. 22-cv-593 (S.D. Cal. Feb. 8, 2023) (finding that plaintiff successfully alleged an injury-in-fact sufficient for standing and stated plausible claims for relief arising from Cava's alleged failure to disclose the presence of PFAS in its food packaging).
Alexandra Cunningham is co-head of Hunton Andrews Kurth LLP's product liability and mass tort litigation practice group. She represents major corporate clients in all aspects of product liability, mass tort and toxic tort and environmental litigation. She can be reached at [email protected]. Merideth Daly is a partner in the firm's product liability and mass tort litigation practice. Her practice focuses on all aspects of litigation and risk management, with a focus on product liability, toxic torts and environmental matters. She can be reached at [email protected]. Both of the authors are based in Richmond.
)
Alexandra Cunningham)
Merideth Daly| End of Document | © 2024 Thomson Reuters. No claim to original U.S. Government Works. |