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

DOJ’s TSCA Case Takes Precedence

A District of Columbia district judge recently dismissed a citizens enforcement action brought by two environmental non-profit groups against Inhance Technologies USA for its alleged violations of the Toxic Substances Control Act (TSCA).  Specifically, the non-profit groups alleged that Inhance—a plastics company that specializes in fluorinating plastic storage containers—violated, and continues to violate, TSCA because Inhance allegedly produces PFAS as part of its fluorination process without first completing the regulatory process necessary to produce PFAS.  The district court, however, concluded that the citizens suit should be dismissed, without prejudice, because TSCA does not permit a citizens suit where, as here, the Department of Justice was diligently prosecuting a previously-filed lawsuit pursuing the same violations.  The district court left open the possibility that the non-profit groups could re-file their suit if the Department of Justice’s conduct suggests that it is no longer diligently pursuing its case.

Center for Environmental Health et al. v. Inhance Technologies USA, No. 1:22-cv-03819 (D.D.C. Apr. 6, 2023). 

New Hampshire Supreme Court Denies Plaintiffs’ Attempt to Recover Medical Monitoring Costs

The New Hampshire Supreme Court has rejected claims by plaintiffs that exposure to PFAS and the possibility of increased health risks require that a plastics manufacturer using the chemicals pay for medical monitoring of local residents, citing the state legislature’s failure to enact such a requirement.

The ruling, which was prompted by a federal district court’s request, could deal a blow to plaintiffs in other lawsuits seeking medical monitoring, among other measures, as a remedy for exposure to PFAS.

The New Hampshire Supreme Court said the question of whether the possibility of health risks is a cause of action for remedy was a matter best resolved by lawmakers, who had failed to enact such a requirement as recently as several years ago.

March 24, 2023 | Brown v. Saint-Gobain Performance Plastics Corp., No. 1:16-cv-00242 (D.N.H. Mar. 24, 2023).

Prospective Class Action Alleges Butter Sticks Contain PFAS

A purchaser of the Irish butter brand Kerrygold has filed a prospective class action in New York, alleging its branding of the butter as “pure Irish butter” falsely leads consumers to believe the products do not contain PFAS.

February 14, 2023 | Winans v. Ornua Foods North America Inc., No. 2:23-cv-01198 (E.D.N.Y. Feb. 14, 2023).

Prospective Class Action Alleges Pomegranate Juice Contains PFAS

A prospective class action was filed on behalf of customers of Pom Wonderful 100% Pomegranate Juice, alleging the advertising of the beverage as “all natural” misleads customers to believe the products do not contain PFAS. The complaint alleges the customers would not have purchased the product if they had known it contained PFAS or would have purchased it only for a lower price.

February 14, 2023 | Hernandez v. The Wonderful Company LLC, No. 1:23-cv-01242 (S.D.N.Y. Feb. 14, 2023).

Sports Drink Company Sued for Use of PFAS

Customers who purchased BioSteel Sports Nutrition’s raspberry sports drink filed a lawsuit against the company, alleging third-party testing of the sports drink indicated that PFAS are present in the drinks and BioSteel knew or should have known. The lawsuit alleges the company made false and deceptive claims by marketing the drinks as “eco-friendly” and “good for you and the environment” and using well-known professional athletes in its campaign.

January 27, 2023 | Bedson v. BioSteel Sports Nutrition Inc., No. 1:23-cv-00620 (E.D.N.Y. Jan. 27, 2023).