A growing awareness of perfluoroalkyl and polyfluoroalkyl substances (PFAS) and the pervasiveness of microplastics have led to an uptick in litigation by private plaintiffs, nongovernmental organizations, and state attorneys general. These lawsuits, which often challenge statements made about a product—for instance, statements that a product is “natural,” “environmentally-friendly,” or “healthy”—because they purportedly contain PFAS or microplastics, have moved beyond run-of-the-mill fraud or false-labeling cases to lawsuits falling squarely in the environmental, social, and governance (ESG) domain.
Frequently brought as class actions, these lawsuits seek economic losses in the form of a price premium—that is, the consumer would have paid less for the product absent the challenged statements. With a large class of consumers, the aggregated losses may be substantial. Companies with PFAS or microplastics on or in their products or packaging need to understand the current litigation landscape and explore strategic solutions to mitigate risk.
BACKGROUND ON PFAS AND MICROPLASTICS
PFAS are a large group of synthetic chemicals that have been widely used in consumer products and industrial processes for decades. PFAS have a broad variety of uses, ranging from nonstick cookware and food packaging to stain- and water-resistant carpeting, clothing, and personal care products. They do not easily break down, and some have been shown to accumulate in the environment and, ultimately, the human body.
Exposure to some types of PFAS has been associated with some health effects. The US Environmental Protection Agency has recently begun regulating PFAS through the Toxic Substances Control Act Reporting and Recordkeeping Requirements for PFAS (among other measures), while the US Food and Drug Administration’s (FDA’s) voluntary commitments from manufacturers have eliminated the sale of grease-proof packaging containing PFAS. The standards in the Safe Drinking Water Act also provide a key impetus for PFAS litigation. And newly enacted state PFAS bans and reporting requirements are driving increased awareness among the consumer population (along with the plaintiffs’ bar).
Microplastics are fragments or fibers of plastic measuring less than 5 mm in diameter that are insoluble in water and nondegradable. Microplastics form when solid plastics, synthetic fibers, or tires break down. But “microplastics” is not a monolith—the term covers many particle shapes, sizes, and polymer types with myriad physical and chemical properties. Like PFAS, microplastics are ubiquitous, and although some states and federal agencies are taking steps to reduce plastic waste (such as through Extended Producer Responsibility measures), there is no single clear regulatory frameworkfor the governance of microplastics.
Rise in Litigation
With “greenwashing” litigation on the rise, PFAS and microplastics litigation has sharply increased over the last several years. Dozens of lawsuits have been filed involving the alleged presence of PFAS in products ranging from tampons, bandages, mascara, fruit juice, and clothing. And there is a new wave of litigation involving microplastics leaching from baby bottles and sippy cups.
Companies are facing litigation on multiple fronts.
- The class action plaintiffs’ bar and state actors have asserted claims for violation of state consumer protection statutes over the alleged presence of PFAS and microplastics in products or their packaging. For example, a food storage bag manufacturer and retailer are facing claims that bags were falsely advertised as “compostable” because they allegedly contain PFAS, which do not break down. In the microplastics space, true statements such as “BPA free” are being challenged as misleading under the theory that consumers allegedly interpret the claim to mean that the product is free of all microplastics. The party asserting claims often cites studies allegedly demonstrating environmental and health concerns associated with PFAS and microplastics in an effort to support their claims that consumers would not have bought the products had they been aware of the presence of these substances or would have paid less for them. Plaintiffs often assert these consumer protection claims in tandem with claims for breach of warranty, fraud, and failure to warn.
- State attorneys general and private plaintiffs have brought claims against chemical manufacturers and their customers regarding the presence of PFAS in products and the alleged release of PFAS into the environment. These claims typically sound in nuisance, negligence, and failure to warn, but can also be grounded in state and federal environmental laws.
- Downstream companies that incorporate PFAS into their products are also suing PFAS manufacturers. These actions typically allege breach of contract, breach of warranty, and negligence.
DEFENSES TO PFAS AND MICROPLASTICS LITIGATION
Although litigation legal theories are still evolving, recent decisions underscore where successful defenses may lie.
- Failure to State a Claim: PFAS and microplastics are persistent and increasingly ubiquitous. Absent an express representation to the contrary, no reasonable consumer can expect products to be entirely free of these contaminants.
- Federal Preemption: For products regulated under the Food, Drug and Cosmetics Act, federal law may preempt plaintiffs’ false labeling, consumer protection, and deceptive trade practices claims.
- Failure to Plead Fraud: Simply asserting that defendants knew or should have known that their labels were false is not enough to satisfy the heightened pleading standard that applies to many common law fraud and deceptive trade practices claims. For products that may have been inadvertently contaminated with PFAS and microplastics (because of their ubiquitous presence in the environment), there is no intent, and certain claims fail as a matter of law.
- Standing: Particularly with respect to deceptive trade practices claims, plaintiffs bringing claims based on past conduct lack standing to seek injunctive relief because the plaintiff is aware that the substances at issue allegedly are present and thus will not be harmed by the allegedly deceptive conduct in the future.
KEY TAKEAWAYS
There are a number of actions companies can take to mitigate their exposure if they use or sell products that may contain PFAS or microplastics.
- Examine marketing materials to confirm their accuracy. For example, courts often reject claims where a company does not make affirmative representations that its product is PFAS-free.
- Ongoing consumer class action litigation is a reminder to set out environmental claims with precision and ample substantiation. This includes not just representations made on package labels but also representations or disclosures made on websites, in advertisements, and in public filings. To the extent third-party certifications are available, relying on those certifications in advertising instead of making potentially ambiguous “all natural” or “non-toxic” claims offers better protection against false advertising allegations.
- Understand the chemicals that are used in your products, as well as any chemicals in products upstream in the supply chain. Companies that use PFAS must determine whether state or federal agencies require disclosure of the existence of the PFAS in the company’s products.
- Ask for representations and warranties from supply chain partners (including ingredient suppliers) regarding whether products contain PFAS.
- No matter where you fall in the supply chain, ensure your contracts have clear indemnification provisions so you will know where your liability lies in the event that litigation arises relating to the presence of PFAS or microplastics in products.
- Clearly understand the terms of your insurance coverage and the policies that might cover legacy liability.