Navigating the PFAS Landscape: Emerging Trends in Litigation

By Katia Asche, Thomas M. Crispi, Robert G. Edwards, and Lynn R. Fiorentino | The National Law Review | September 18, 2024

Read the full article by Katia Asche, Thomas M. Crispi, Robert G. Edwards, and Lynn R. Fiorentino (The National Law Review)

"The per- and polyfluorinated substances (PFAS) landscape is rapidly developing as manufacturers and sellers of consumer products face increased litigation. One emerging pattern is lawsuits alleging a failure to disclose the presence of PFAS in products and the potential targeting of products that advertise to be high quality or natural. Additionally, plaintiffs’ testing for PFAS has come under scrutiny, resulting in dismissals.

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While some PFAS lawsuits have alleged physical injuries, those lawsuits faced challenges in proving a causal connection between PFAS and the alleged injuries. In a shift, recent lawsuits focus on products’ packaging and labeling, arguing that manufacturers failed to disclose the presence of PFAS. Plaintiffs claim that if the presence of PFAS had been disclosed, they would not have purchased the product or, at least, would not have paid the same price for the product. In these packaging and labeling lawsuits, products that advertise to be of a particular quality or imply natural, organic, or healthy ingredients may be more targeted than others for this type of litigation. In a lawsuit regarding PFAS in baby wipes sold under Costco’s Kirkland brand, the complaint makes various references to the product’s claim of natural ingredients. The complaint asserts that the packaging and labeling of these products are thus particularly misleading.

As these trends demonstrate, consumer product manufacturers and sellers should focus on accurate and adequate labeling with respect to PFAS. By remaining vigilant about PFAS content and understanding what the law requires them to disclose (and how), manufacturers can mitigate exposure to similar lawsuits."