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June 29, 2022 Articles

Beyond Water Wars: PFAS Litigation Expands to Fast Food, Cosmetics, and More

It is one thing to sue the companies that created and manufactured chemicals containing PFAS, and it is another to sue the companies that used those chemicals to make its products.

By David J. Marmins and Morgan E. M. Harrison
The scope of PFAS litigation has expanded beyond chemical manufacturers over the past few years.

The scope of PFAS litigation has expanded beyond chemical manufacturers over the past few years.

Pexels | Polina Tankilevitch

It is not always easy to pinpoint when a wave of litigation becomes a flood, but it is likely that we are at that moment with polyfluoroalkyl substances (PFAS) suits. On June 15, 2022, the U.S. Environmental Protection Agency (EPA) released new drinking-water advisory levels for perfluorooctanoate acid (PFOA) and perfluorooctanesulfonic acid (PFOA), the two most prominent members of the per- and polyfluoroalkyl substances family. The advisory levels of 0.004 and 0.02 parts per trillion for PFOA and PFOS, respectively, are nearly “non-detect” amounts and represent the current administration’s move toward enforceable regulations for these chemicals, which became prevalent in numerous industries due to their usefulness in creating consumer products that repel water and soil. There is little doubt that the latest EPA announcement will further embolden the plaintiff’s bar.

The scope of PFAS litigation has expanded beyond chemical manufacturers over the past few years, widening to include a broad spectrum of industrial users of PFAS and products containing PFAS. On May 14, 2022, Rhonda Cooper filed suit [login required] asking to represent a class of everyone who has eaten Burger King products, including Whoppers, chicken nuggets, cookies, and French toast, seeking damages for PFAS exposure. If that seems like an ambitious class (considering that nearly 16 million customers patronize Burger King every day, and buy over two billion Whoppers a year), a recent decision out of Ohio suggests it may have a chance at certification. On March 10, 2022, District Court Judge Edmund Sargus, Jr. certified a class of all individuals in Ohio with “0.05 parts per trillion of PFOA and at least 0.05 ppt of any other PFAS in their blood serum.” Judge Sarknas declined to include all such residents of the United States but reserved the right to expand the case beyond Ohio later. Considering that PFAS is as ubiquitous as any man-made chemical, found in the blood of most people and animals in the world, the implications of this ruling are staggering.

PFAS Litigation Origins and Expansion

Perhaps the most famous PFAS suit was brought in 1998 by a farmer, Wilbur Tennant, in Parkersburg, West Virginia, where Dupont operated a chemical manufacturing facility and a landfill. The landfill was adjacent to a creek that flowed to where Tennant grazed his cows. Tennant filed suit after over 150 of his cows died, many with stringy tails, malformed hooves, giant lesions protruding from their hides, and red, receded eyes, suffering constant diarrhea and slobbering white slime. Discovery in that case exposed a trove of research on PFAS by 3M and Dupont dating to the 1960s. The Tennant case settled, and subsequently over 3500 plaintiffs filed personal-injury lawsuits against Dupont. The first member of this group to go to trial was a kidney-cancer survivor named Carla Bartlett. In October 2016, Bartlett was awarded $1.6 million. In February 2018, 3M agreed to an $850 million settlement with the state of Minnesota over allegations that its production of PFAS had polluted drinking water in the state. (In the first quarter of 2019, 3M took a $548 million charge for litigation, which it said included $235 million for lawsuits related to PFAS.)

By 2019, several states had filed lawsuits against PFAS manufacturers for purported contamination, including New Jersey, New Hampshire, Vermont, and New York. The lawsuits claimed that the companies (including 3M, Dupont, and Chemours) knew of the health risks associated with PFAS yet failed to warn the public. That same year, both Chemours and 3M were named in environmental liability-related securities lawsuits. And in March 2020, a jury awarded $50 million to a testicular cancer survivor and his wife who claimed that the illness was linked to Dupont’s contamination of their drinking water with a chemical the company used at its Parkersburg plant despite knowing that it was hazardous.

Meanwhile, municipalities started suing not only chemical manufacturers, but also industrial users of PFAS. In 2017, the Water Works and Sewer Board of Gadsden, Alabama sued over 30 manufacturers, distributors, and users of chemicals containing PFAS in the carpet industry, primarily located in Dalton, Georgia, alleging that PFAS discharged by the defendants had made its way downstream into the city’s drinking water. For years, the carpet industry had used such chemicals (e.g., Dupont’s Stainmaster and 3M’s Scotchgard) to make carpet resistant to soil and water. The cities of Centre, Alabama and Rome, Georgia subsequently brought cases against most of the same carpet industry defendants. Those cases, as well as a class action brought by the citizens of Rome, remain pending.

Lawsuits Against Fast-Food Chains

It is one thing to sue the companies that created and manufactured chemicals containing PFAS, and it is another to sue the companies that used those chemicals to make its products. But to sue the companies that simply used packaging that contain PFAS is a giant leap. To gamble the resources necessary to go after those defendants, the stakes must be high enough to make it worth it. Hence, the recent suits against Burger King and McDonald’s.

On March 28, 2022, Larry Clark filed suit in Illinois federal court against McDonald’s Corp. alleging that the fast-food chain has used PFAS in its food packaging for Big Macs, fries, McWaffle Sticks, and hash browns. The hash browns, specifically, are a prime example of what makes PFAS so valuable in the marketplace.

In 1970, McDonald’s began testing breakfast items such as the Egg McMuffin, which took off and led the chain to adopt a full breakfast menu by 1977, including hash browns. Hash browns, though, like much of fast-food fare, leak a lot of grease. Customers did not like their hash browns leaking through the paper bag wrapping, and sales failed to take off until, as Clark alleges, McDonald’s added a 3M PFAS product, Scotchban FC-807, to its packaging. The PFAS additive, with its strong fluorine carbon bond responsible for preventing stains on your carpet, food sticking to your Teflon pans, or water saturating your Gore-Tex jacket, kept the grease from leaching onto the hash brown wrappers. It worked so well that McDonald’s began using PFAS-laden packaging to keep its Big Macs and other items from sticking to wrappers and leaking grease.

Clark’s suit cites a 2022 Consumer Reports study that tested over 100 fast-food products and found PFAS in at least some packaging from every retailer it tested, including McDonald's, Burger King, Chick-Fil-A, and even healthier branded chains such as Cava and Trader Joe’s. Notably, the study did not test the food itself to determine if it had PFAS, but Consumer Reports included this statement in its report, “We know that these substances migrate into food you eat,” says Justin Boucher, an environmental engineer at the Food Packaging Forum, a nonprofit research organization based in Switzerland. “It’s clear, direct exposure.” It also cites to a 2021 Spanish study that found that “Food Contact Material (“FCM”) can transfer substances to food through a process known as migration.”

Only a few months after Clark submitted his complaint, Rhonda Cooper filed her class-action suit against Burger King in Ohio federal court. Still another class action, initiated by Azman Hussain, was filed against Burger King in California, asserting a “whopping” 14 claims against the company. (The Whopper is the best-selling hamburger in the United States, outselling Big Macs by about four to one.) Notably, none of these lawsuits allege personal injuries as a result of exposure to PFAS. Instead, the complaints include counts for violations of consumer-protection statutes, breach of warranties (based on the restaurants’ public proclamations that its products are safe), related warranty claims arising from the Magnusson-Moss Warranty Act, and unjust enrichment (alleging that the restaurants make millions in revenue from products enhanced by PFAS and falsely claimed to be safe).

Paper Mill Lawsuits

PFAS have been used in paper food packaging for more than 50 years, mostly as coatings to prevent the paper material from soaking up fats and water, but also in printing inks and as moisture barriers. In November 2018, residents of Parchment, Michigan (dubbed the “Paper City” and named after the famous Parchment mill in 1939) filed a complaint in federal court alleging that PFAS had migrated from a former paper mill and its associated facilities into Parchment’s municipal water system. The lawsuit sought damages for necessary medical monitoring for the class participants, nuisance, trespass, negligence, gross negligence, battery, and products-liability claims. Last year, 3M and Georgia Pacific agreed to pay $11.9 million to settle the case. The money was put into a fund to pay those who had property interests and/or resided in homes serviced by Parchment’s municipal water system on the date that contamination was discovered in July 2018.

Not long after that settlement, a resident of Fairfield, Maine filed a class action against more than a dozen paper mills and paper companies in Somerset County Superior Court alleging PFAS contamination of local drinking-water sources. The original sole defendant was Sappi North America, but Northern Paper, Kimberly-Clark, Scott Paper, and Huhtamake were later added as defendants. Just last month, consumer advocate Erin Brockovich traveled to Fairfield to meet with residents to help drum up class participation.

Claims Against Cosmetic Companies

Recent suits have been filed against cosmetics companies Cover Girl Cosmetics, L’Oreal USA, Clorox (the parent company of Burt’s Bees), and Shiseido alleging PFAS contamination. These cases follow a June 2021 report in the Journal of Environmental Science and Technology that found PFAS in over half the cosmetic products tested. While prior PFAS litigation focused on PFAS making its way into the bloodstream through drinking water or eating animals that live in rivers containing PFAS, it may also be possible for PFAS to enter the bloodstream through “dermal absorption,” when chemicals travel through skin and into the body. (“Dermal absorption” became a phrase many people learned when former Major League Baseball player Barry Bonds’s leaked grand-jury testimony referred to his use of steroid cream; no shots required.)

As with the fast-food cases, these suits do not allege personal injuries. Instead, they allege false advertising and related claims stemming from alleged fraudulent and misleading marketing of the products as safe and environmentally friendly. Again, rather than claiming monetary damages from PFAS-related injuries, plaintiffs claim that the companies have lied about their PFAS use and demand injunctions to notify consumers of the PFAS in their products and to stop using PFAS.

Medical Monitoring in the Hardwick Class Action

In the Hardwick class action against 3M and other PFAS chemical manufacturers, Judge Sargus certified a class of Ohio residents with detectable levels of PFAS in their blood. While it may not chart new territory in the form of defendants, its scope and implications are remarkable.

The plaintiffs seek relief in the form of medical monitoring and scientific assessments. Indeed, defendants in PFAS lawsuits have relied on the lack of federal regulations or other enforceable standards limiting PFAS use and discharge. Without regulations, defendants contend that they are within their rights to use PFAS without violating permits or breaking any laws. Understandably, the defendants point out that if the EPA has not been able to draw conclusions as to any health implications of PFAS exposure in order to set standards, they cannot possibly be held liable for manufacturing or using such chemicals. On the other hand, plaintiffs say that there are no regulations because there is not enough data on the effects of human exposure to PFAS, and studies on animals have shown correlations to various health problems. So, Hardwick seeks medical monitoring and scientific assessments to prove the alleged serious health problems associate with PFAS exposure.

This could set the table for personal-injury suits and provide evidence for more PFAS litigants once the EPA finalizes regulations. And that is really the heart of the matter. During a March 10, 2022, Environmental Law Institute (ELI) webinar, experts predicted that such suits could also provide a roadmap for future superfund litigation once the EPA lists PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

After years of study, PFAS standards may finally be on the horizon. The latest timetable from the EPA promises regulations no later than 2023. While the current lack of enforceable standards complicates the claims of PFAS litigants, once bright-line levels are established, the leverage will shift dramatically toward the plaintiffs. Regulations will force public utilities to issue new permits to industrial users forbidding discharge of PFAS and give them the ability to sue violators under federal environmental laws, not just nuisance and other common-law theories that they have used so far. And regulations will give citizens all over the country more credibility in bringing class actions like Hardwick, claiming harm from PFAS in their bloodstream.

David J. Marmins is a partner and Morgan E. M. Harrison is an associate with Arnall Golden Gregory LLP in Atlanta, Georgia.

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