By Thomas R. Waskom, a Partner with Hunton Andrews Kurth in the firm’s Richmond, VA office.
Three putative class actions recently filed in the Northern District of California—DiGiacinto v. Albertsons Cos., Ambrose v. Kroger Co., and Nguyen v. Amazon.com, Inc.—preview a new theory of consumer claims relating to per- and polyfluoroalkyl substances (PFAS). Rather than rely on alleged omissions or representations about health risks, the plaintiffs claim that they relied on marketing statements that indicated the products they purchased (“compostable” disposable dinnerware) were disposable and would completely degrade over time and that the presence of PFAS in the products means those marketing statements were false. That focus on the environmental persistence of PFAS, rather than the substances’ alleged health effects, marks a new approach to PFAS consumer class actions.
PFAS are a family of organic compounds with a carbon-fluorine bond, the strongest bond in nature, which enables them to repel both oil and water. This unique characteristic makes PFAS useful in a wide array of industries and applications, including stain and water-repellent fabric, chemical-and oil-resistant coatings, mist suppressants, food packaging materials, plastics, firefighting foam, solar panels, and many others. PFAS’s solubility and extreme durability also make the compounds highly persistent in the environment. It should be noted, however, that PFAS has also been linked to some health concerns, even though the scientific validity of those links is highly debated.
To date, PFAS litigation has focused almost exclusively on occupational exposure, environmental contamination, and personal exposure allegedly arising from that contamination. For example, the thousands of cases currently pending in an MDL in South Carolina relate to the use of PFAS in firefighting foam, thus resulting in groundwater contamination. A rare exception was a 2019 putative class action based on the alleged presence of PFAS in dental floss. The plaintiff’s claims arose under consumer protection statutes, but they were premised on the purported health risk posed by the dental floss, and the case was quickly dismissed.
DiGiacinto, Ambrose, and Nguyen represent a new avenue for PFAS litigation—consumer class actions based on the persistence of PFAS in the environment, rather than any purported health risk to the consumer. In all three cases, the plaintiffs allege that they bought a product based on the representation that after its disposal, the product would decompose in the environment over time. The plaintiffs claim that the purported presence of PFAS in the product renders that representation false. Each plaintiff asserts claims for breach of express warranty, unjust enrichment, and violation of California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (under the unfair, unlawful, and fraudulent prongs).
The plaintiffs’ focus on the environmental persistence of PFAS rather than the substances’ alleged health effects is a subtle but significant reframing. The plaintiffs claim to have found a confluence of two critical facts: the alleged presence of PFAS in a product, and a marketing claim that is incompatible with the presence of PFAS. The plaintiffs’ complaints and theories are still vulnerable to several defenses—the pleadings are remarkably vague about exactly which products the plaintiffs bought, when, and for how much. Even still, the shift away from health risks avoids the ongoing debate about what those health risks actually are. Instead, the plaintiffs can focus on environmental persistence which is not widely disputed.
Manufacturers and retailers should consider which of their products or packaging contain PFAS and check whether those products’ labels make any claims about degradability. Marketing teams may need to reconsider some claims if PFAS are present.