Manufacturers Fight Back on PFAS Litigation | ArentFox Schiff

Per- and polyfluorinated substances (PFAS) include various synthetic chemicals that have been used in products ranging from cookware to clothing and carpets to cosmetics for decades. These various uses, when combined with a recent focus on releases of PFAS substances to the environment, have begun to spawn litigation against consumer products companies.

This spring, we discussed a recent California federal case against BIC USA Inc. stemming from BIC’s use of PFAS-related chemicals in disposable razors. In that case, two consumers claim that BIC failed to disclose the use of these chemicals to consumers, notwithstanding that it had disclosed their use to the Maine Department of Environmental Protection (DEP) in accordance with Maine law. Below, we summarize the main arguments BIC presents in its recently filed motion to dismiss the lawsuit and outline what issues other consumer products companies should be tracking.

BIC’s Motion to Dismiss

BIC’s motion to dismiss argues that its January 2023 disclosure to Maine regulators, stating the razors contained “a miniscule amount of one specific PFAS — polytetrafluoroethylene (PTFE),” commonly known as Teflon™, did not create an additional duty for BIC to disclose this information to consumers. In support of this argument, BIC notes that PTFE has been approved by the US Food and Drug Administration (FDA) as safe for use in several products, including food contact material and medical device implants. Significantly, PTFE’s risk profile differs from the thousands of other types of PFAS, as PTFE itself is a non-toxic polymer unless heated to an exceedingly high temperature.

Similarly, BIC argues that the plaintiffs fail to sufficiently allege a causal relationship between PTFE and any specific health concern or economic injury claimed by the plaintiffs. Nor do the plaintiffs allege how much PTFE is in the strips, which would be of consequence to a consumer’s purchasing decision.

BIC further asserts that the plaintiffs’ fraud counts do not satisfy the requirements of Federal Rule of Civil Procedure 9(b) because, among other reasons, generally alleging that all PFAS are “harmful” and that consumers “care about the[i]r presence” does not sufficiently allege consumers’ detrimental reliance, i.e., how a more prominent disclosure of PTFE in these specific products would have impacted the plaintiffs’ choice in razors.

Finally, BIC moves to dismiss or strike the nationwide class allegations to the extent the plaintiffs assert claims of non-resident class members for conduct occurring outside of California.

Beyond BIC

BIC’s case is not the only PFAS-related product liability or consumer protection case in which a defendant has pushed back on a plaintiff’s generalized allegations that a product contains PFAS. Costco Wholesale Corp and Nice-Pak Products, Inc., for example, presented similar arguments to a California federal court earlier this month in support of their motion to dismiss a proposed class action complaint alleging that Costco’s fragrance-free Kirkland Signature Baby Wipes contained 3.7 parts per billion of PFAS. As relevant here, the Costco defendants argued that the plaintiffs lacked standing because they did not plausibly allege an injury in fact. Similar to BIC’s arguments, the Costco defendants further argued that not all PFAS are considered “harmful,” and that the plaintiffs failed to specify which PFAS were in its product, let alone if the PFAS it contained were considered “harmful.”

As the BIC and Costco lawsuits demonstrate, strong defenses are available in the context of PFAS product liability and consumer protection litigation. However, defending against the broader risk of PFAS liability requires a more comprehensive strategy. As we have continuously stated, companies must be very intentional about their product contents and labeling, and stay abreast of the ever-evolving PFAS regulatory landscape. From design and manufacture to sales, each stage of the product life cycles can create risks, but all of these can be mitigated if handled appropriately.

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