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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Previous Issues

Court Rejects Attempt to Dispose of Suit Alleging “Compostable” Products Contain PFAS

A California plaintiff survived a motion to dismiss her claims that NatureStar North America and Target Corporation should be liable for the allegedly false and deceptive business practice of marketing tableware and food storage bags—which allegedly contain PFAS—as “compostable” when PFAS cannot be composted. The defendants’ motion challenged the plaintiff’s standing on three grounds: (1) lack of a concrete injury; (2) ripeness; and (3) failure to support injunctive relief. Ultimately, the court agreed with the defendants’ injunctive relief argument—because the plaintiff failed to allege that she was likely to purchase the product in the future—but the court also noted that this deficiency can be cured and therefore granted the plaintiff leave to amend. The court rejected the defendants’ concrete injury and ripeness arguments, ruling that the plaintiff properly pleaded the “well-established” concrete injury of paying a premium for a falsely advertised product and further ruling that the plaintiff’s claims were ripe because they presented a ripe legal question about the FTC Green Guides’ definition of “compostable.”

September 11, 2024 | Little v. NatureStar North America LLC, No. 1:22-cv-00232 (E.D. Cal.).

Wisconsin Supreme Court Will Review Decision Striking Down PFAS Hazardous Substance Listing

The Wisconsin Supreme Court has agreed to review a landmark ruling that struck down Wisconsin’s hazardous substance listing for PFAS, which effectively blocked regulators from requiring cleanup of PFAS without first completing a rulemaking. The Wisconsin Court of Appeals invalidated the state Department of Natural Resources’ policies on PFAS as hazardous substances under the state’s long-standing Spills Law and voided enforcing thresholds or requirements for the substances and the department’s liability waiver policy. The court of appeals agreed with the lower court that these policies are rulemakings that did not follow procedural rulemaking requirements.

September 11, 2024 | Wisconsin Manufacturers and Commerce Inc. v. Wisconsin DNR, No. 2022AP000718 (Wis.).

Sports Drink Manufacturer Can’t Avoid PFAS Suit

A California district court dismissed most—but not all—of a plaintiff’s claims in a false advertising suit against Prime Hydration, the manufacturer of a sports beverage. The plaintiff alleged that the beverage’s product label—which included claims such as “refresh, replenish, and refuel” and “250 mg BCAAs, B Vitamins, antioxidants, and 835 mg electrolytes”—was false and misleading because the label led consumers to believe that the product was healthy, despite third-party testing allegedly showing that the beverage contained “material levels of PFAS” that exceeded the EPA’s health advisory levels. For its part, the court determined that a reasonable consumer would not be misled by the “healthy” label claims and consequently dismissed the plaintiff’s claims for violations of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act. However, the court determined that the plaintiff’s breach of implied warranty claim should survive, citing the testing data alleged, as well as the plaintiff’s allegations that the presence of PFAS compromised the product’s safety and fitness for consumption.

September 9, 2024 | Castillo v. Prime Hydration LLC, No. 3:23-cv-03885 (N.D. Cal.).

EPA Moves to Dismiss Lawsuit Challenging Failure to Regulate PFAS in Biosolids

The EPA has moved to dismiss a lawsuit brought by farmers from Texas and Maine who allege the agency has a nondiscretionary duty to regulate PFAS in sewage sludge under the Clean Water Act. They allege the EPA is also violating the Administrative Procedure Act by failing to regulate PFAS in this manner as well as arguing that the agency’s failure to identify the presence of certain PFAS is arbitrary and capricious. The EPA argues the Clean Water Act gives the agency discretion on whether to identify and regulate toxic pollutants in sewage sludge. In addition, the EPA contends the plaintiffs have not identified any Clean Water Act section that requires the EPA to regulate PFAS in the manner the plaintiffs urge, and the plaintiffs therefore failed to meet Clean Water Act citizen suit requirements.

September 9, 2024 | Farmer v. Environmental Protection Agency, No. 1:24-cv-01654 (D.D.C.) .

Plaintiffs Roll Out a New Lawsuit Against Chemical Manufacturers

A putative class action on behalf of consumers who have allegedly been exposed to PFAS found in carpets and rugs was filed in a Minnesota district court. The plaintiffs allege that PFAS confer stain-, soil-, and water-resistance qualities to carpets and rugs and that the defendants sold PFAS products to carpet companies for that purpose but without disclosing the toxicity of the products. The putative class is limited to those who purchased carpeting, had the carpeting installed before January 1, 2020, still own the building where the carpeting was installed, and have not removed the carpeting. The complaint includes a whopping 127 tort-related claims under various states’ laws.

August 30, 2024 | Peterson v. 3M Co., No. 0:24-cv-03497 (D. Minn.).