PFAS Litigation Updates

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The world of PFAS litigation is quickly evolving. As regulatory scrutiny of these compounds increases, so, too, will the body of associated case law. From class actions to multidistrict litigation, this section will regularly highlight developments in PFAS-related litigation.

Content in this section does not reflect the opinion of Alston & Bird or its attorneys.

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Wisconsin Court Voids State’s Hazardous Substance Designation for PFAS

The Wisconsin Department of Natural Resources (DNR) had a policy of treating “emerging contaminants” including PFAS as falling within the definition of “hazardous substances” under a state law pertaining to spills, without specifying which emerging contaminants or levels could trigger the spills law. The DNR’s policy was struck down by a Wisconsin state appeals court, which “conclude[d] that the DNR’s regulation of emerging contaminants as hazardous substances, and at certain concentrations, amounts to unlawfully adopted rules” that were promulgated without the proper procedures. The appeals court underscored the “fundamental principle” that laws “must give fair notice of conduct that is forbidden or required.”

March 6, 2024 | Wisconsin Manufacturers and Commerce Inc., et al. v. Wisconsin Department of Natural Resources, et al., No. 2022AP718 (Court of Appeals of Wisconsin).

California Federal Court Dismisses Lawsuits Alleging PFAS in Tampons

“100% Organic Cotton.” “Gentle and safe for your body.” “Only what you need, nothing you don’t.” Those representations about tampons were false or misleading, according to the plaintiffs, because the tampons contained synthetic PFAS chemicals. A federal court in California granted the tampon company’s motion to dismiss. It reasoned that the plaintiffs did not “plausibly allege that [the company’s] tampon products contain forever chemicals.” Although the plaintiffs alleged that independent, third-party testing proved the presence of PFAS in the tampons, the court found that the allegations were cursory and insufficiently specific, with no information about the amount of fluorine detected or whether it was significant.

January 12, 2024 | Lowe v. Edgewell Personal Care Company, No. 3:23-cv-00834, Mack v. Edgewell Personal Care Company, No. 3:23-cv-00837 (N.D. Cal.).

Health-Ade Kombucha Faces PFAS Suit

Like an increasing number of companies, Health-Ade has been hit with a lawsuit challenging the health claims of products allegedly found to contain PFAS. It is facing a putative consumer class action in the Southern District of New York alleging that Health-Ade falsely markets its kombucha as healthy when the products allegedly contain PFAS. The products’ labels include phrases such as “happy gut” and “organic.” The plaintiff used results from “independent laboratory testing” of five different Health-Ade products for PFAS to support her claim that the products contain PFAS (and therefore pose a health risk). She asserts New York General Business Law and unjust enrichment claims on behalf of nationwide and New York putative classes.

January 9, 2024 | Morton v. Health-Ade LLC, No. 7:24-cv-00173 (S.D.N.Y.).

Significant Win for Chemical Manufacturers May Be Reviewed En Banc by Sixth Circuit

Plaintiff Kevin Hardwick, a former firefighter, used firefighting foam containing PFAS, and now his blood contains PFAS. Hardwick sued certain PFAS manufacturers. The district court certified a class comprising essentially every Ohioan with PFAS detectable in their blood. The Sixth Circuit reversed, holding that Hardwick failed to plead that the PFAS in his blood is actually traceable to each named defendant. The panel stated: “Hardwick has not alleged facts supporting a plausible inference that any of these defendants caused these five particular PFAS to end up in his blood. … He elides rather than meets the Supreme Court’s requirements as to pleadings and traceability. Hardwick therefore lacks standing to proceed with his claim.”

The circuit court reviewed the case on interlocutory appeal at the request of the PFAS manufacturer defendants. It reviewed de novo the district court’s finding that Hardwick had standing. In December 2023, Hardwick challenged the panel’s decision in a petition for rehearing en banc, which the defendants opposed.

December 11, 2023 | Hardwick v. 3M Company, et al., No. 22-3765 (6th Cir.).

Ohio Resolves PFAS Litigation Tied to West Virginia Facility

Three chemical manufacturers agreed to pay the State of Ohio $100 million to resolve litigation arising out of claims that the entities caused PFAS contamination at a facility in neighboring Parkersburg, West Virginia. Eighty percent of the settlement will be allocated to restoring natural resources related to the operation of the facility, 16% will be used to address alleged damages caused by PFAS-containing firefighting foam, and the remaining 4% will be put toward mitigation of alleged damage to natural resources. The settlement concludes litigation that began in 2018.

November 29, 2023 | State of Ohio v. E.I. du Pont de Nemours & Co., et al., No. 18OT32  (Ohio Ct. Comm. Pleas).