• About two years have passed since cases were first filed alleging that product marketing deceptively conveyed a lack of PFAS. At this point, many demands have been made, and over 25 cases have been filed. Cases have targeted a variety of products, including fast food packaging, microwave popcorn, juice, waterproof mascara, cosmetic powders and foundation, mouthwash, floss, tampons, waterproof apparel, period underwear, and anti-fog spray for glasses.
  • A handful of cases have targeted claims like “PFAS Free” and “No long-chain PFAS.” Largely, however, plaintiffs argue that claims, such as the following, convey an absence of PFAS: “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, Forest Stewardship Counsel, and Fair Trade – even where neither the advertising nor the certifiers, themselves, purported to guarantee an absence of PFAS.
  • Most plaintiffs allege that claims are deceptive where testing allegedly showed 100 ppm or more of organic fluorine – which, according to plaintiffs, indicates intentionally added or a “material” amount of PFAS. One case, however, alleged that the threshold was lower, at 20 ppm.
  • So far, over five cases have been dismissed with courts reasoning, for instance, that either the presence of PFAS was disclosed or a company had no duty to disclose PFAS, that migratory chemicals are not “ingredients,” that plaintiffs identified no representations as to PFAS, that plaintiffs failed to test the specific products they purchased, or that organic fluorine does not necessarily indicate the presence of PFAS. Unfortunately, even with such holdings, there is little comfort where courts have not coalesced (and may never coalesce) around how to handle these cases. At least five motions to dismiss remain pending, and at least one motion to dismiss was denied nearly in its entirety. Several cases have settled confidentially, and one settled publicly, with the company agreeing to (1) pay up to $6.5 million in refunds and attorneys’ fees, and (2) take measures to avoid intentionally added PFAS.
  • Keller and Heckman will continue to follow and be available to assist managing risk around PFAS.