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

Proposed Class Action Filed Against BIC for Alleged PFAS-Containing Razors

A group of plaintiffs filed a proposed class action against BIC, claiming that the company failed to inform its consumers that its shaving razors contain PFAS. With their suit, the plaintiffs assert claims—on behalf of a national class and a California subclass—for violations of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act, as well as claims for fraud, unjust enrichment, and negligent failure to warn.

May 15, 2024 | Butler v. BIC USA Inc., No. 4:24-cv-02955 (N.D. Cal.).

Plaintiffs’ Counsel Entitled to $956 Million in Attorneys’ Fees and Costs in PFAS Settlements

As part of the settlements reached by 3M and Dupont in the AFFF MDL, a South Carolina federal judge approved an award totaling nearly $1 billion for the plaintiffs’ attorneys’ fees and costs. The judge noted that plaintiffs’ counsel worked over 400,000 hours over four and one-half years to achieve the settlements against the two defendants.

April 23, 2024 | In re Aqueous Film-Forming Foams Products Liability Litigation, No. 2:18-mn-02873 (D.S.C.).

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.).