On January 12, 2024, a northern California federal district court dismissed the PFAS-related class-action case of Lowe v. Edgewell Personal Care Company on the grounds that its plaintiffs had not plausibly alleged injury from the products at issue.
The Lowe plaintiffs brought their actions against two different tampon product lines, claiming that the presence of “per and polyfluoroalkyl substances (PFAS) rendered the manufacturer’s various representations about the products false and misleading.” The plaintiffs alleged that “independent third-party testing” confirmed the presence of PFAS in the tampons at issue. These tests looked for organic fluorine, allegedly a surrogate or proxy for PFAS chemicals—in other words, the presence of organic fluorine indicates that PFAS are present as well. The plaintiffs claimed that the presence of PFAS rendered actionable the manufacturer’s marketing claims regarding the tampons’ organic materials and sourcing.
In response, the manufacturer filed motions to dismiss the actions on the grounds that the plaintiffs had not, among other things, plausibly alleged that: its products contained PFAS, that any alleged amount of PFAS rendered the products harmful, or that the products contained representations that might mislead reasonable consumers.
The court granted the manufacturer’s motions, finding the plaintiffs’ testing allegations to be “cursory.” According to the court, the plaintiffs’ allegations provided no specificity as to the results reached by the independent testing or any other findings that would support their interpretation of the testing results. It also found the plaintiffs to have merely speculated that the tampon components were likely to contain PFAS because those chemicals are “frequently” used to make materials water-repellant.
Ultimately, the court found the plaintiffs’ allegations that the tampons contained PFAS to be insufficient because the plaintiffs did not provide any information showing how much PFAS the tampons might have contained, let alone whether that level of PFAS in a tampon might be harmful. It specifically contrasted its situation with that of other cases, such as Kanan v. Thinx Inc. and Hamman v. Cava Group, Inc., which included allegations that the defendant’s products contained levels of PFAS “above trace amounts.”
Lowe provides an encouraging indication to manufacturers that federal courts will not allow just any complaint containing PFAS allegations to progress past the pleading stage of litigation. That said, the case might still be active if its plaintiffs’ testing had produced more-substantive results. Responsible manufacturers will ensure they know exactly what sort of materials their products contain and that their marketing cannot be interpreted as materially misrepresenting those products’ PFAS content.
