Katie Bond is a partner, and Samuel Butler is an associate, in the Washington, DC office of Keller and Heckman LLP.

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Eluding any single scientific or regulatory definition, per- and polyfluoroalkyl substances (PFAS) are generally considered a varied group of thousands of chemicals with fluorinated carbon.¹ Because of PFAS’s resistance to oils, water, and heat, manufacturers have used them in products from firefighting foam to cookware to cosmetics. 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. The EPA launched its “Strategic Roadmap” focused on restricting and remediating PFAS in the environment.² FDA and the U.S. Department of Agriculture are assessing PFAS in the food supply—so far finding PFAS in few foods except for some types of seafood.³ Other federal entities are addressing patient testing for PFAS in clinical settings and investigating PFAS in emergency response equipment.⁴ At the same time, numerous states are restricting PFAS in food packaging, among other products, like cookware.⁵  

Not surprisingly, the increased attention on PFAS has not been lost on the plaintiffs’ bar. 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.⁶ Cases have targeted 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 PFAS-specific claims like “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 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.”
• “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 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 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.⁷

So far, courts have dismissed at least seven cases, with four judges finding a lack of standing, two finding a lack of plausibility, and one finding a lack of plausibility and standing only as to monetary but not injunctive relief. 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. One court, for instance, found 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.”⁸ 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.”⁹

Unfortunately, courts’ failure to coalesce on how to resolve these lawsuits offers businesses little comfort. At least five motions to dismiss remain pending, and at least two motions to dismiss were denied nearly in their entirety.¹⁰ 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.

Options companies might take to help reduce risk include the following:

• Stay informed about testing being undertaken and announced publicly by entities like 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 which, 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.
• Consider implementing a program to control intentionally added PFAS in materials from suppliers and in final product.
• 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, counter plaintiff arguments that products are necessarily PFAS free by avoiding any broad messages of safety, and instead focusing solely on what specific testing or other safety measures have been taken to make products “safer.”
• Along the same lines, carefully describe what certifications mean, and consider working with certifiers to confirm their marketing avoids broad messaging such as “sustainable” or “safe.”

Notes

1. George G. Misko, Navigating U.S. Federal and State Regulations of PFAS in Applications Involving Food, Food Safety Magazine, Oct./Nov. 2022.
2. Fact Sheet: Biden-⁠Harris Administration Launches Plan to Combat PFAS Pollution (Oct. 18, 2021).
3. FDA, Questions and Answers on PFAS in Food (last updated May 31, 2023).
4. See supra n. 2.
5. See supra n. 1. 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.”
6. See, e.g., Compl., Rivera v. Knix Wear, No. 22-cv-02137 (N.D. Cal. Apr. 4, 2022); Compl., Hussain v. Burger King, No. 22-cv-02258 (N.D. Cal. Apr. 11, 2022); Compl., Brown v. CoverGirl, No. 22-cv-02696 (S.D.N.Y. Apr. 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); Dawood v. Gamer Advantage, No. 22-cv-562 (E.D. Cal. Mar. 28, 2022).
7. Compl., Santiago v. Campbell Soup, No. 23-cv-3295 (N.D. Cal. June 30, 2023).
8. GMO Free USA v. CoverGirl Cosmetics, No. 2021 CA 004786 B, at *2, *4 (D.C. Sup. June 1, 2022).
9. Id. at 6.
10. See Dawood v. Gamer Advantage, No. 22-cv-562 (E.D. Cal. Aug. 4, 2022) (motion to dismiss denied except as to two claims conceded by plaintiff); Kanan v. Thinx, No. 20-cv-10341 (C.D. Cal. June 23, 2021).