What Is a PFAS, and Why Should I Care? Part II - The Threat to the Restaurant and Food Packaging Industries, and Potential Personal Injury Classes | JD Supra

What Is a PFAS, and Why Should I Care? Part II - The Threat to the Restaurant and Food Packaging Industries, and Potential Personal Injury Classes | JD Supra

In our initial blog post, we introduced readers to per- and polyfluoroalkyl substances (PFAS), known as “forever chemicals,” and predicted the rise of PFAS consumer class actions and increased regulatory activity barring the use of PFAS in consumer products in state and federal legislatures. As a quick refresher, PFAS biodegrade very slowly, are extremely persistent in the environment and can bioaccumulate in the human body. These chemicals remain in the spotlight under continued environmental scrutiny and new regulation by the Biden administration. Recent toxicity assessments by the Environmental Protection Agency have linked certain PFAS chemicals to cancer and other serious negative health effects at low concentrations. While PFAS litigation has been primarily focused on PFAS chemical manufacturers, we hypothesized in our last post that consumer plaintiffs’ attorneys might begin to target companies that use PFAS in their products and/or in their packaging. At the time we published, only a few putative consumer class actions had been filed in federal courts in the United States. Already, less than a month from our original article, PFAS cases are on the rise, with at least three new consumer class actions in three different industries: an anti-fog product manufacturer, a multinational cosmetics company and a well-known skin/lip care company. Due to several recently released studies, food packaging companies and restaurants are quickly becoming prime targets for PFAS litigation.

Consumer Reports recently revealed that its May 2022 issue will contain a study that tested over 100 types of to-go food packaging — e.g., french fry containers, sandwich wrappers, food containers — from 24 retailers in order to estimate each material’s total PFAS content. The study found that almost a third of the products tested had what it categorized as high levels of PFAS. In February 2020, a similar study conducted by the Mind the Store campaign and Toxic-Free Future, found that nearly half of the fast-food packaging items it tested (14 out of 29) contained high levels of PFAS.

Based on the scientific research performed to date, it will be extremely difficult to demonstrate any link between PFAS in any single restaurant’s fast-food packaging and cancer. Despite this, at least one plaintiff already has rushed to the courtroom steps and filed a class action lawsuit asserting violations of several consumer-protection causes of action based on allegations that a fast-food retailer failed to warn its consumers or misrepresented the level of PFAS in its food packaging. As a result, plaintiff alleges that these products “are worthless and have no value.” This complaint, along with those that may follow, will face significant legal challenges including the fact that plaintiff’s “no value” theory of damages has garnered little to no success at the class certification stage of analogous food labeling litigation. Nevertheless, it is likely that this lawsuit is just the first of many consumer-protection class actions that will be filed over the next few weeks and months against the fast food and restaurant industry. You can be certain that plaintiffs are testing products and doing their research as we write.

Will these and other studies like them lead to personal injury class actions?

Based on the potential health risks associated with PFAS exposure, will we start to see personal injury class actions against fast-food restaurants, food packaging manufacturers and other industries? We would typically answer no, as nearly all courts for decades have recognized the inappropriateness of personal injury class actions. However, the potential for at least the filing of this category of lawsuits may be enlarged due to a surprising decision by a federal judge in the Southern District of Ohio, who appears to have deviated from long-standing precedent and certified a Rule 23(b)(2) injunctive relief PFAS personal injury class—specifically a Rule 23(b)(2) injunctive relief class seeking medical monitoring for all Ohioans who have a certain level of PFAS in their blood.  This decision is particularly troubling given the Court’s adoption of plaintiff’s comparison of PFAS to the asbestos and tobacco injury class actions—two of the largest personal injury class actions in the history of the United States.  As expected, the defendants have appealed the district court’s certification decision to the Sixth Circuit Court of Appeals. We will keep you updated on the outcome of this appeal, as it could have significant consequences for how subsequent PFAS class actions are litigated and defended. As discussed below, however, this decision is a clear exception and not the rule.

Any attempt to obtain class treatment for PFAS personal injury cases should face significant obstacles, particularly if plaintiffs are seeking damages using a Rule 23(b)(3) class, as they will be required to show that questions of law or fact common to the class predominate over questions that affect individual members. As numerous courts have noted, the inquiry into what caused a plaintiff’s injuries (the causation element) necessarily requires an individualized evaluation that destroys class treatment in personal injury cases. Because of the ubiquitous nature of PFAS (present in everything from carpets, furniture and food packaging to household dust and drinking water), potential class plaintiffs are likely to struggle to establish how or when PFAS entered their bloodstream, let alone that it came from any single defendant (or, in some cases, even from a source that originated in the United States). Any causation determination would require extensive individualized evidence that would result in countless “mini-trials” to resolve — something Rule 23 abhors. Based on the legal precedence, we believe that PFAS-related personal injury class actions should not be successful. With that said, the more publicity PFAS receives — including the publication of additional studies revealing potentially high levels of PFAS in consumer products — the more likely the plaintiffs’ bar will see the possibility of a significant payday outweighs the risks of an adverse certification decision.

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