Impact of New PFAS Reporting Requirements on Consumer Product Greenwashing Litigation

The current spate of “Greenwashing” litigation includes cases targeting the presence of PFAS (per- and polyflouroalkyl substances, or “forever chemicals”) in consumer products.

Since 2020, nearly fifty separate lawsuits have been filed alleging consumer protection liability for manufacturers’ failure to disclose the presence of PFAS in a diverse array of products—including cosmetics, dental floss, fast food packaging, microwave popcorn, bottled juice, waterproof apparel, car seats, and feminine hygiene products.

These cases are still in the early stages. While many have been dismissed on the pleadings, others have been allowed to proceed:

• Kanan v. Thinx Inc., (C.D. Cal. 2021 Case No. 20-cv-10341). The court denied the motion to dismiss as to the express warranty, UCL, FAL, and unjust enrichment claims. In doing so, the court held that the complaint sufficiently alleged that, contrary to advertisement and packaging and due to the alleged inclusion of PFAS chemicals, the Thinx menstrual underwear was not organic cotton, not safe for its normal use, and made of material that contained harmful chemicals.
  
  
• Brown v. Coty, Inc. (S.D.N.Y. Case No. 22-cv-2696). The court dismissed the complaint alleging that CoverGirl Lash Blast Volume Waterproof Mascara was deceptively marketed. The complaint did not (1) specify which PFAS were allegedly in the product that plaintiff purchased, or at what levels; or (2) sufficiently allege that the defendant should have known its products contained PFAS as a result of product degradation, impurities, or the treatment of certain ingredients with PFAS.
  
  
• Dalewitz v. Procter & Gamble Co. (S.D.N.Y. Case No. 22-cv-7323).The court dismissed the complaint alleging that Oral-B Glide Dental Floss products were deceptively marketed as part of the “Pro-Health” line of products when they actually contained PFAS. The court found plaintiffs’ citation of a third-party study that screened the product for fluorine, a proxy for PFAS, was insufficient to demonstrate the presence of specific PFAS in the product. The court further reasoned that plaintiffs did not establish that any PFAS allegedly present in the dental floss could migrate from the product to the human body in a harmful manner.
  
  
• Solis v. Coty, Inc. (S.D. Cal. Case No. 22-cv-0400). The court dismissed the complaint because the plaintiff could not allege that the CoverGirl TruBlend Pressed Powder was deceptively marketed as “dermatologically tested” and “suitable for sensitive skin,” where (1) there was no cogent nexus between those product statements and plaintiffs’ belief that the product was PFAS free, and (2) the product label disclosed that a PFAS chemical was one of its ingredients.
  
  
• Richburg v. Conagra Brands, Inc. (N.D. Ill. Case No. 22-cv-2420). Here, the court dismissed two consolidated cases alleging that Orville Redenbacher and BOOMBCHICKAPOP microwave popcorn were deceptively marketed as containing “only real ingredients,” and “100% ingredients from natural sources.” The court reasoned that a reasonable consumer would not consider artificial, migratory chemicals in the microwave popping bags to be popcorn “ingredients.”

These cases are likely to become more complex as federal and state PFAS regulations and statutes emerge. For example, on January 1, 2023, the State of California’s prohibition of the distribution and sale of food packaging containing certain PFAS chemicals went into effect, placing restrictions on sellers of food and beverage containers, take-out food containers, utensils, straws, and more. This is the first of four new PFAS prohibitions that will go into effect within the next two years in California, while other states including Maine, Minnesota, and New York have several PFAS-related bills in the pipeline. Additionally, various state regulators have established stringent standards for PFAS in drinking water at very low (parts per trillion) concentrations—a development which may serve to support claims that PFAS in products should be regarded as potentially toxic ingredients and not as mere impurities. On the federal level, upcoming FTC Green Guide amendments may also address PFAS reporting and labeling requirements.

At the same time, new U.S. Environmental Protection Agency (EPA) regulatory requirements obligate manufacturers and importers of PFAS chemicals to file reports on those PFAS with the EPA. On November 13, 2023, the EPA’s final rule went into effect requiring reporting of PFAS data pursuant to the Toxic Substances Control Act (“TSCA”). Under this regulation, “manufacturers” (defined broadly to include any importers and manufacturers of articles containing PFAS chemicals) of any of 1,462 subject PFAS materials must report information concerning environmental and health effects related to the materials, without regard to the amount or concentration of PFAS materials present. For most manufacturers, the reporting deadline will be May 13, 2025, while certain small manufacturers will have a deadline of November 13, 2025. The new regulation dispenses with a di minimis exemption—a significant departure from previous rules that excepted small quantity manufacturers and importers from the law. And because the EPA intends to use the information collected via these disclosures to create the largest-ever dataset on the environmental and health effects of PFAS, litigants may soon have a new repository of reports to reference in future consumer deception claims.

Although the new rule is intended to impose testing and reporting obligations on manufacturers and importers of PFAS materials and chemicals, it may also implicate manufacturers and retailers of consumer-facing products. Consider, for example, the obligations imposed on a manufacturer of a water-resistant snack box under each of the following scenarios:

1. The snack box manufacturer knows the box has PFAS which make the box water resistant;
   
   
2. The snack box manufacturer does not know the box has PFAS, but PFAS were intentionally added by the box supplier to make it water resistant;
   
   
3. There are PFAS in the box, but nobody realizes it because it is a contamination from water used in the manufacturing or cleaning process, or a by-product of other chemicals.

In the first two scenarios, the manufacturer of the water-resistant PFAS material may now have an obligation to report its production of such materials and related information to the EPA. In contrast, the snack food manufacturer which sourced the water-resistant box from the third-party supplier will not have a reporting obligation under the new EPA rule. However, enterprising plaintiffs may, in light of the new EPA rule, now try to argue that the snack food manufacturer should have known of the presence of PFAS in the product in connection with consumer labeling claims—though this still may be insufficient to succeed on the pleadings.

As to the third scenario, it is still unclear whether the snack box manufacturer would be subjected to liability in the absence of reporting requirements for unintended contamination. However, consumer protection claims have been dismissed where plaintiffs failed to allege that product manufacturers knew or should have known that its products contained PFAS as a result of chemical degradation or impurities. See Brown v. Coty, Inc., 2023 WL 2691581, at *5 (S.D.N.Y. Mar. 29, 2023).

Due to these developments, manufacturers of consumer products will be well served to keep the new PFAS standards and reporting rules in mind as they observe best practices to avoid Greenwashing claims. It remains critically important to evaluate environmental and health benefit claims on products to assure that necessary qualifications and disclaimers are included.

When evaluating claims, it may be helpful to focus on a process or claim that can be backed up, rather than making blanket statements that are difficult to support. For example, stating that a product is free of one specific ingredient is better than a vague blanket statement like “Our all-natural products are free of potentially harmful ingredients.” And, with new regulations posing a new variable to an already complicated list of considerations, companies should be sure that their insurance policies are written to include an endorsement to provide PFAS coverage going forward.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Hannah Y. Chanoine, an O’Melveny partner licensed to practice law in Massachusetts and New York, Eric Rothenberg, an O’Melveny of counsel licensed to practice law in New York, and Jasmin Cohen, an O’Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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