Two putative class actions not too long ago filed within the Northern District of California—Ambrose v. Kroger Co. and Nguyen v. Amazon.com, Inc. —preview a brand new idea of client claims referring to per- and polyfluoroalkyl substances (PFAS). Quite than depend on alleged omissions or representations about well being dangers, the plaintiffs declare that they relied on advertising and marketing statements that indicated the merchandise they bought (“compostable” disposable dinnerware) had been disposable and would fully degrade over time and that the presence of PFAS within the merchandise means these advertising and marketing statements had been false. That concentrate on the environmental persistence of PFAS, moderately than the substances’ alleged well being results, marks a brand new strategy to PFAS client class actions.
PFAS are a household of natural compounds with a carbon-fluorine bond, the strongest bond in nature, which allows them to repel each oil and water. This distinctive attribute makes PFAS helpful in a wide selection of industries and functions, together with stain and water-repellent material, chemical-and oil-resistant coatings, mist suppressants, meals packaging supplies, plastics, firefighting foam, photo voltaic panels, and plenty of others. PFAS’s solubility and excessive sturdiness additionally make the compounds extremely persistent within the surroundings. It needs to be famous, nonetheless, that PFAS has additionally been linked to some well being issues, despite the fact that the scientific validity of these hyperlinks is extremely debated.
Up to now, PFAS litigation has targeted virtually completely on occupational publicity, environmental contamination, and private publicity allegedly arising from that contamination. For instance, the 1000’s of instances presently pending in an MDL in South Carolina relate to the usage of PFAS in firefighting foam, thus leading to groundwater contamination. A uncommon exception was a 2019 putative class motion primarily based on the alleged presence of PFAS in dental floss. The plaintiff’s claims arose underneath client safety statutes, however they had been premised on the purported well being danger posed by the dental floss, and the case was shortly dismissed.
Ambrose and Nguyen characterize a brand new avenue for PFAS litigation—client class actions primarily based on the persistence of PFAS within the surroundings, moderately than any purported well being danger to the buyer. In each instances, the plaintiffs allege that they purchased a product primarily based on the illustration that after its disposal, the product would decompose within the surroundings over time. The plaintiffs declare that the purported presence of PFAS within the product renders that illustration false. Each plaintiffs assert claims for breach of specific guarantee, unjust enrichment, and violation of California Unfair Competitors Regulation, Cal. Bus. & Prof. Code § 17200 et seq. (underneath the unfair, illegal, and fraudulent prongs).
The plaintiffs’ concentrate on the environmental persistence of PFAS moderately than the substances’ alleged well being results is a refined however vital reframing. The plaintiffs declare to have discovered a confluence of two crucial details: the alleged presence of PFAS in a product, and a advertising and marketing declare that’s incompatible with the presence of PFAS. The plaintiffs’ complaints and theories are nonetheless weak to a number of defenses—the pleadings are remarkably imprecise about precisely which merchandise the plaintiffs purchased, when, and for a way a lot. Even nonetheless, the shift away from well being dangers avoids the continuing debate about what these well being dangers really are. As a substitute, the plaintiffs can concentrate on environmental persistence which isn’t extensively disputed.
Producers and retailers ought to think about which of their merchandise or packaging include PFAS and examine whether or not these merchandise’ labels make any claims about degradability. Advertising groups might must rethink some claims if PFAS are current.
Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.Nationwide Regulation Assessment, Quantity X, Quantity 196