Of all industries facing the possibility of major litigation for chemical content, food and beverages are two we would hope would be really low on the list. Yet major food and beverage companies around the US face federal class action lawsuits over the presence of PFAS chemicals in their products or packaging. McDonald’s, Burger King, Coca-Cola, and Bolthouse Farms are all defendants in a new wave of class action litigation alleging false advertising and fraud due to the presence of the chemicals.
What are PFAS?
Perfluoroalkyl substances are a designation of about 9,000 different “forever chemicals” often abbreviated as PFAS (don’t ask me how they settled on that acronym). In September of 2022 the EPA initiated rulemaking to designate two popular PFAS chemicals as CERCLA Hazardous Substances. This drew the attention of the public with many wondering what potential threats PFAS posed. Preliminary studies have linked these chemicals to a variety of negative health effects including changes in liver enzymes and increased cancer risks. However, PFAS and their effects on human health are still not fully understood. PFAS are found in numerous products, and in many places, they have leached into the soil and groundwater (including in my drinking water according to the EPA notice I received.)
The pervasive nature of PFAS is part of what makes it so difficult for companies to avoid. In the Coca-Cola and Bolthouse cases, plaintiffs allege liability due to the presence of PFAS in the product itself. PFAS could have entered the product at multiple points in the supply chain, including through the use of contaminated water or through the use of fruit treated with pesticides. For McDonald’s and Burger King, plaintiffs claims are based on the use of PFAS in product packaging. Both McDonald’s and Burger King have announced their intention to remove PFAS from product packaging by 2025. However, plaintiffs don’t believe the companies are acting quickly enough.
Interestingly the plaintiffs aren’t using a products liability theory and are instead bringing suits on theories of fraud. These claims are generally structured as: “Company stated that their product was safe/natural, the company’s products contain PFAS which is unsafe/unnatural, therefore the company has misled consumers about their products and the consumers compensation.”
The Bolthouse lawsuit is based on the company’s Green Goodness smoothie, specifically labeled on the bottles as made of “100% fruit juice.” After testing the product, it was found to contain PFAS which plaintiffs claim is something other than fruit juice.
The success of these cases remains to be seen, but litigators feel confident in their chances of success despite the lack of a proven PFAS litigation model. At this time not much is known about PFAS, its long-term effects, or what levels of PFAS consumption are safe. This may make proving damages difficult for plaintiffs and may be part of why they have not gone the traditional products liability route.
Civil litigants aren’t the only ones getting in on PFAS litigation. At least three state attorneys general are in the process of bringing litigation against companies for PFAS contamination. Unlike consumers, these attorneys general are suing primary and secondary PFAS manufacturers. A number of states have also enacted PFAS bans in an attempt to limit further exposure to the chemicals.
What This Means
As PFAS litigation takes off, more companies are likely to come into the crosshairs of plaintiffs, especially if these initial cases result in high awards for damages. Companies should be aware of what levels of PFAS their products contain and where in their supply chains PFAS may be entering their products. To limit litigation risks and protect the safety of customers, companies would be wise to investigate opportunities to phase out PFAS usage as quickly as possible and ensure that any products currently containing PFAS are within acceptable levels. This may not be easy because the chemicals are used in many products and – as it seems they are now pervasive in the natural environment – may be incorporated into water supplies and agricultural products.
Different agencies have differing guidance on what levels of PFAS exposure are acceptable. Legal departments should familiarize themselves with these and companies should attempt to comply with the lowest possible threshold. To learn more about PFAS regulation and litigation check out our Regulatory and Chemical Use sections on our Subject Area page Compliance / Enforcement / Litigation.