Given the ubiquity of per- and polyfluoroalkyl substances (PFAS), new and different aspects of liability continue to trend. While many of the lawsuits involve allegations of environmental contamination or personal injury resulting from the impairment of public water systems, the landscape has expanded to other areas.
For example, more recently a series of lawsuits focusing on consumer protection claims have arisen against various beverage manufacturers:
- Bedson et al. v. BioSteel Sports Nutrition Inc. 23-cv-620, E.D.N.Y. (Jan. 2023) (seeking, among other remedies, costs of any notice sent to the Class, restitution, actual and statutory damages, attorneys’ fees, and punitive damages)
- Toribio et al. v. The Kraft Heinz Co. 22-cv-6639, N.D. Ill. (Nov. 2022) (same)
- Smith et al. v. WM. Bolthouse Farms, Inc. 23-cv-373, E.D.N.Y. (Jan. 2023) (same)
- Walker et al. v. Keurig Dr Pepper Inc. 22-cv-5557, E.D.N.Y. (Sept. 2022) (same)
- Hernandez et al. v. The Wonderful Co. LLC et al. 23-cv-1242, S.D.N.Y. (Feb. 2023) (same)
The complaints against the beverage manufacturers, principally brought by the same law firm, allege violations of the (1) Magnuson-Moss Warranty Act; (2) the California Consumer Legal Remedies Act; (3) Unfair Competition laws; (4) False Advertising Laws, and (5) Breach of Implied Warranty laws. Each of the complaints seek the same damages—namely, costs relating to providing notice to the class, restitution, actual and statutory damages, attorneys’ fees and costs and punitive damages.
The allegations in these suits portend similar claims that may be brought against other companies that develop and market consumer products. For this reason, those in risk management should be particularly wary of potential litigation threats.
For example, Prime Hydration, a sports beverage company founded by popular YouTube influencers Logan Paul and Olajide William Olatunji (a.k.a. KSI), is facing a class action lawsuit for its Grape Sports Drink, which is labeled and marketed as “healthy” with antioxidants, electrolytes and vitamins. Plaintiffs allege that its independent testing results revealed that the drink contains PFAS substances.
Several other lawsuits have similarly raised exposure in the beverage industry, including one filed in February claiming that although POM Wonderful markets a juice as containing “100% Pomegranate Juice” and being “All Natural,” it allegedly contains PFAS. Complaints containing similar allegations have been filed against beverage brands Simply Tropical, Capri Sun, BioSteel Sports Nutrition and Bolthouse Farms.
It is not just the beverages themselves that are under scrutiny. Last year, a lawsuit against Keurig Dr Pepper, Inc. alleged that the packaging used for its Nantucket Nectars contains harmful PFAS despite representations that it manufactures and distributes beverages “responsibly” and makes a “positive impact” on people and the planet. Whether it is the beverage or the packaging, these class actions raise the same theories, i.e., scrutinizing the labeling and packaging of the brands and alleging that representations of “all-natural,” “healthy” or “safe” are deceptive when independent investigations allegedly reveal their products contain PFAS.
The Impact of the Rising Number of Class Actions
These pending lawsuits raise important questions as to whether it is safe for consumer products to contain de minimis levels of PFAS and, if so, what those levels should be. At this point, the FDA has not outlined a specific standard for safe levels of PFAS in food or beverages. On the other hand, it does have authority over the pre-market review and approval of food additives and food contact substances. In theory, at least, FDA approval of a PFAS-containing food additive or food contact substance may provide a modicum of assurance to businesses that their products do not contain unsafe levels of these substances, though the controversial and developing state of the science regarding PFAS-related health risks does not make this a guaranty.
Meanwhile, the EPA has established interim health advisory levels for prominent PFAS found in drinking water, and earlier this year proposed maximum contaminant levels for six PFAS chemicals, including the two most studied PFAS—PFOA and PFOS. However, these levels are orders of magnitude lower than the concentrations at which EPA regulates other contaminants in the environment. Moreover, the EPA and the states have proposed specific levels for only a very small subset of the full range of some 12,000 PFAS in commercial distribution. Even so, the plaintiffs in these and other lawsuits are taking the position that any amount of any PFAS is unhealthy and, on the whole, detrimental.
A business’s exposure to PFAS-related class actions is significant and, to judge from the recent filings, may include punitive damages. In response to the legal actions and growing public awareness, some companies have started to reevaluate their production process and sourcing of materials in an effort to reduce or eliminate PFAS from their products and processes. Given the ubiquity of PFAS and litigation exposure associated with PFAS, these lawsuits not only set a potential roadmap for the beverage manufacturers but are of concern to businesses in all industries exposed to PFAS.