Hollingsworth LLP partners Gary Feldon and Caroline J. Barker, associates of Hollingsworth LLP
Important takeouts:
- Class action lawsuits for PFAS consumers are on the rise. In particular, they target food and beverage companies that sell their products as “pure”, “natural”, or “healthy” and claim they would not have purchased the product if they knew that PFA existed.
- Future EPA regulations (by January 2026) that require PFAS manufacturers to report their use in public databases from 2011 to 2022 may run the risk of dramatically expanding the case, as plaintiffs can pursue cases without product testing if they can refer to this database.
- Food and beverage businesses should take proactive steps to manage litigation risk by ensuring regulatory compliance, obtaining appropriate insurance, reviewing supplier relationships, investigating marketing claims, and consulting with a professional lawyer.
Single and polyfluoroalkyl substances (PFAs) are synthetic compounds called “eternal chemicals” due to their very long-term chemical bonds. Public attention is growing at the concurrent rise in lawsuits relating to PFA exposure over the potential health effects of PFA. Environmental Protection Agency (EPA) regulations require PFA manufacturers and importers to submit reports on the use of PFA between 2011 and 2022. Disclosure of these reports may not pose a downstream litigation risk for companies that purchased products containing PFA. Combined with the new trends in class actions for PFAS consumers, these disclosures raise very concerns about the outrageous litigation outlook. Companies in the food and beverage industry, particularly those selling their products as healthy, pure or natural, are particularly at risk, and positive steps to address this issue should be considered before the lawsuit comes into play.
Current legal environment for PFAS consumer claims
There is an increasing trend in class action lawsuits filed by Mass Tort Tort plaintiffs’ bars, alleging cases claiming misconceptions or false marketing of consumer products said to include PFA as an ingredient or contaminant. These claims differ significantly from major PFAS cases that have occurred so far. This is primarily based on personal injury or damage to natural resources such as groundwater. Consumer claims are based on allegations that the consumer did not purchase or paid less for the product if the PFA was disclosed as an ingredient or contaminant. Uniform damages on these claims are particularly attractive to the bar of large tort claimants, as the claims claiming individual injuries are generally not subject to certification as class action under the federal rules of civil action 23(a).
PFAS consumers argue that the products in question in this type of lawsuit frequently target the food and beverage industry, ranging from dog food to cosmetics. Along with the food, the plaintiffs frequently claim that PFA moved to food when they contacted them. for example, The Food and Drug Administration (FDA) has approved the use of PFA in antigreasing agents Until January 2025, for paper and paperboard food packaging such as microwave popcorn bags and fast food wrappers. Foods sold as pure, natural or healthy are favourite targets of PFAS consumer claims. For example, Coca-Cola Company claims that I sold that simple tropicality by mistake® Juice drink When the plaintiffs claim that the drink was contaminated by multiple PFAS compounds from manufacturing equipment and product packaging, they use “all natural materials” as “Made Simply.”
PFAS consumers claim it poses their own threats to runaway lawsuits. Courts considering consumer claims can focus entirely on consumer expectations rather than requiring plaintiffs to provide reliable scientific evidence of the actual health effects of PFAS exposure in question. Without a burden indicating a health risk, the plaintiff’s main de facto burden will only be to show that the product in question contains PFA.
Although it looks like a very low bar at first glance, many consumers’ claims have stumbled upon the inability to display products containing PFA. For example, in Hernandezv. WonderfulCo. LLCthe plaintiff filed a proposed class action lawsuit alleging that the pomegranate juice drink she purchased was deemed healthy and pure. The district court dismissed the claim that the plaintiff could not show any injury because it did not claim that the drinks purchased (or the same product sold in the same time frame) were positive for PFA. Other cases were dismissed because the plaintiff’s complaints relied on tests specific to PFAS. Organic fluorine test. However, future deadlines for the publication of products containing PFA may functionally eliminate this restriction of unidentified growth of PFAS consumer claims.
Impact of future EPA disclosures on PFAS consumer claims
In accordance with the Toxic Substance Control Act, EPA has added a wide range of classes of PFA on the list of substances covered by mandatory reporting requirements. Under this regulations, companies that manufactured or imported substances and products containing these PFA between 2011 and 2022 must disclose information regarding the use of PFA. Necessary details It includes all “existing information” about used PFA and amounts, chemical information, downstream byproducts, environmental and health effects, exposure to potential employees, and disposal methods. All information is directed towards existing EPA databases of this type of chemical information known as “central data exchange” (CDX). The reporting deadline is currently January 11, 2026, with SMEs reporting for another six months. EPA This deadline has been delayed This is because in October 2024, CDX still couldn’t accommodate the expected amount of information.
Including PFA in CDX could effectively eliminate the final check on runaway PFAS consumer class action lawsuits. in Recent Consumer Class Action Cases Alleging that the defendant’s butter was contaminated with PFA from the packaging, the district court allowed the suit to proceed to discovery despite the plaintiff not testing the butter in the PFA. The court reasoned that the fact that butter was recalled in response to the New York state ban on food package PFA was sufficient to raise a reasonable inference that the PFA had migrated to butter purchased by the plaintiffs. Just as the case can proceed to discovery without testing plaintiffs purchased when a CDX report indicates that PFA may exist, even some courts can open submersions on a large number of tort claimants bars, if they can open submersions on a bar of tort claimants, they can file a PFAS consumer class action without filing a proposed PFAS consumer class action.
PFAS usage information may dramatically increase the number of businesses targeting PFAS consumer billing using information published on CDX. Public disclosures regarding PFAs of consumer products consistently drive new litigation. Several class action consumer claims can be directly traced to past disclosures regarding the existence of PFA in consumer products. For example, a 2022 Consumer Report Article Reports on PFA in food packaging led to consumer class actions against several restaurant chains and other food-related businesses designated in the article. Once reports from PFAS manufacturers and importers become available through CDX, tracking downstream products to companies that used, sold or distributed the products is not a major feat. These downstream companies could be caught up in lawsuits even if they were unaware of the existence of PFA in their products. In fact, companies may not know that upstream suppliers will immediately submit reports on the use of PFA to the EPA.
Managing litigation risks for PFAS consumer claims
Food and beverage industry executives should be aware of the revelation of the PFAS litigation, especially given the reporting requirements for the new EPA. We recommend a proactive approach to avoiding litigation and preparing.
- Ensures ongoing regulatory compliance: Countless federal and state laws and regulations govern the use and disposal of PFA. Compliance with these rules will help protect the company from government actions and liability from private litigators.
- Get and maintain appropriate insurance coverage. Insurance for PFAS consumer claims can be significantly more expensive or difficult to obtain if the number or litigation defense costs increase dramatically as more cases are moving towards costly discoveries. Additionally, additional insurance coverage may be prohibitively expensive or completely unavailable if the company waits until a lawsuit has already been filed.
- Reconsidering the supplier relationship: Companies need to look at the supply chain and the contracts that manage it. Companies can mitigate the risk of liability from suppliers by adding PFA coverage clauses, warranties, or representations to supplier agreements. Companies should consider identifying alternative suppliers early to minimize possible disruptions if existing suppliers are unable to provide the necessary guarantees.
- Marketing and Public Statement Review: Official statements and label reviews may also help to avoid future litigation. This review looks for something that could be perceived as an understatement of exposure that would be misunderstood or open the door to the use of PFA or claims of misrepresentation. If a company relies on the privileges of lawyers and clients to protect internal review and deliberations from the disclosure of potential cases, it is increasingly likely to inadvertently waive the privilege, and therefore caution must be given to the use of in-house lawyers. External lawyers can also provide more objective reviews.
- Early retention of litigation lawyers: For businesses with reason to believe they may be subject to PFAS consumer claims, we recommend that you maintain appropriate external lawyers with expertise in mass tort litigation as soon as possible to develop mitigation and response strategies. Actively placing a company for potential litigation can reduce the likelihood of achieving that litigation and dramatically improve the outcome.
Companies in the food and beverage industry, particularly those selling their products as pure, healthy or natural, are already the preferred targets of the growth trends of PFAS consumer class action lawsuits. An increase in publicity from the upcoming EPA deadline for a 10-year public CDX report on the use of PFA could drive an increase in litigation. The possibility that the court could allow plaintiffs to proceed to discovery with CDX reports alone instead of a reliable PFA test provides a troubling prospect of a runaway litigation. Businesses in the food and beverage industry should actively address existing litigation risks and take steps to limit potential future liability.
