By Susan Brice and Anne Kaup
PFAS Litigation Expands
The USEPA and states are moving quickly toward addressing PFAS contamination in the environment through various rulemaking and legislative efforts. To date, the most significant regulations have focused on the historical use of firefighting foam containing PFAS; however, many Congressional bills are pending, and the USEPA is conducting research and developing rulemakings to address PFAS. At this point in time, there is no overarching federal mandate, but rather some federal and state advisories and a patchwork of state laws and regulations, many prohibiting PFAS in specific consumer products. Initially, lawsuits were brought against the chemical companies that created PFAS, but later they were filed against the manufacturers that incorporate PFAS into products. These legal actions have been in the form of human health claims, property damage claims and clean-up efforts. Now PFAS litigation is expanding to retailers. Consumer product companies must pay attention as litigants turn to consumer fraud and misrepresentation claims as a means to short circuit their way to recover damages. These types of claims, in contrast to claims for personal injury and property damages, do not require plaintiffs to prove that PFAS caused specific bodily injuries or damage to their water or land, thereby avoiding the science-intensive causation issues. Generally, plaintiffs must only assert that deceptive practices led them to purchase certain products (or purchase them at higher prices) that they otherwise would not have bought if they had known the products contained PFAS.
PFAS Exposure and Human Health Risks
PFAS are synthetic chemicals found in many everyday products due to their nonstick characteristics, resistance to high and low temperatures, and invulnerability to degradation. Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), made up of long chains of environmentally persistent, bioaccumulative carbon-flourine bonds, are two of the most well-studied types of PFAS. Some studies allegedly have linked PFOA and PFOS exposure at certain levels to effects on the immune and cardiovascular systems, human development, cancer, and suppression of vaccine response. Short-chain PFAS, composed of fewer carbon atoms, particularly those grouped as “GenX” and “PFBS,” have been developed to replace PFOA and PFOS. They possess similar properties to the long-chain PFAS, but generally do not take as long to break down.
In June 2022, the USEPA issued lifetime health advisory levels for PFAS in drinking water as follows:
- Interim updated health advisory for PFOA = 0.004 parts per trillion (ppt)
- Interim updated health advisory for PFOS = 0.02 ppt
- Final health advisory for GenX chemicals = 10 ppt
- Final health advisory for PFBS = 2,000 ppt
In setting the advisory levels, the USEPA considered other potential sources of exposure such as food, air, and consumer products.
Companies Marketing Products as “Sustainable” and “All Natural” are Under Fire
Over the course of 2022, an increasing number of class action cases have been filed containing consumer fraud claims against companies for misrepresenting the safety, sustainability and natural quality of products for which PFAS was detected. These cases look not only at labels, but also at general marketing statements on websites, television advertisements and other digital media regarding a product’s adherence to sustainability or health standards.
The plaintiffs in two recent and ongoing class action lawsuits, Krakauer v. Recreational Equipment, Inc. (REI), Case No. 3:22-cv-05830 (W.D. Wash.) and Lurenz v. The Coca-Cola Co., Case. No. 7:22-cv-10941 (S.D.N.Y.), used independent third-party testing to determine whether the defendants’ products contained PFAS. In both instances, the tests allegedly showed the products contained PFAS, albeit using non-standardized testing methods.
But setting aside whether the products contained PFAS, the significant development here is the employment of consumer fraud-type laws and connecting them not only to statements made about PFAS specifically, but also to more general statements about the company and its products, including that the company’s products were sustainable, in the case of REI, or that the products were all natural, in the case of Coca-Cola.
More specifically, in REI, the plaintiffs took issue with REI’s representation of meeting certain standards such as the “Fair Trade” certification which focuses on “safe working conditions” and “environmental protection;” the “bluesign®” certification that claims to “unite the entire textile value chain to reduce impacts on people and planet” (the plaintiffs admit, however, that bluesign currently restricts only 140 of 9,000 known manufactured PFAS); and REI’s own “Product Sustainability Standards” that “raise the bar on Product Sustainability.” Furthermore, the plaintiffs claim that REI’s alleged PFAS-containing products are contrary to goals of the “Sustainable Apparel Coalition” for which REI is a member. As these lawsuits proceed, the definition of “sustainable” may come into play. In REI, the plaintiffs condemned REI’s claim that it sold “sustainable gear built to last” that “can be passed down a generation-or two.” Contrary to plaintiffs’ general portrayal of “sustainable” as “environmentally friendly;” however, if “sustainable” is interpreted to mean “long-lasting,” the fact a product contains PFAS, or “forever chemicals,” does not necessarily conflict with the company’s version of “sustainable.”
And in Coca-Cola, the plaintiffs claimed Coca-Cola falsely represented its juice product as “all natural” despite the fact the product contained PFAS. The product is prominently labeled “All Natural,” and “Simply” is incorporated into the product’s name. The plaintiffs alleged the words “All Natural” and “Simply” are meant to convey natural, simple ingredients, free of artificial and synthetic ingredients. The only ingredients listed on the product are filtered water, fruit juice and puree, cane sugar and natural flavors, along with the statements “with Simply, there’s nothing to hide” and “what you see is what you sip.” Television and marketing advertisements ask consumers to “Say Yes to Simple.”
In both lawsuits, the plaintiffs assert that the defendant companies’ alleged false, misleading and deceptive representations make the marketed products worthless or less valuable. If the companies had disclosed that their products contained PFAS chemicals, the plaintiff consumers claim, they would not have purchased the products or would have paid less for them; therefore, they suffered injury through lost money or property.
In both cases, the plaintiffs included product liability claims as well as fraud claims, sought class certification and requested compensatory, statutory and punitive damages. One could envision a slippery slope where these claims could be expanded to include sustainability representations to agencies as well as to the public in corporate filings. Companies, in realms such as product labeling, marketing campaigns and ESG reports, should carefully craft any claims about sustainable products, such as representations that they are “environmentally friendly,” as well as claims about the safety of wholesomeness of their products, such as they are “all natural” or “healthy.”
 The USEPA has published its plans to address PFAS. See PFAS Strategic Roadmap: EPA’s Commitment to Action 2021-2024
 Claims in REI: Violation of Washington’s Consumer Protection Act, Wash. Rev. Code §§ 19.86, et. seq.; Breach of Implied Warranty of Merchantability, Wash. Rev. Code § 62A.2-314; Breach of Express Warranty of Merchantability, Wash. Rev. Code § 62A.2-313; Fraud; Constructive Fraud; Fraudulent Inducement; Money Had and Received; Fraudulent Concealment or Omission; Fraudulent Misrepresentation; Negligent Misrepresentation; Quasi Contract / Unjust Enrichment; Violation of Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et. seq.
Claims in Coke: Negligent Failure to Warn; Violation of Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et. seq.; Violation of the New York Deceptive Trade Practices Act, New York Gen. Bus. Law §§ 349, 350 et. seq.; Breach of Express Warranty; Fraud; Constructive Fraud; Unjust Enrichment.