Plaintiffs Continue to Face Standing Challenges in PFAS Litigation

First, on September 29, a New York federal court dismissed a proposed class action brought against beverage manufacturers, finding that the plaintiff lacked Article III standing. The lawsuit alleged that the defendants’ juice products, marketed as “all natural,” contained PFAS and asserted claims under New York’s Deceptive Trade Practices Act, New York State Agriculture & Markets Law, negligence per se, and unjust enrichment.

The plaintiff alleged in his Second Amended Complaint that independent laboratory testing conducted on three separate occasions detected “material” and “significant” levels of PFAS in various juice products, contending that reasonable consumers would not expect “all natural” products to contain such chemicals. The defendants moved to dismiss the Second Amended Complaint, arguing, among other things, that the plaintiff failed to allege a concrete and particularized injury sufficient to confer standing.

In granting the defendants’ motion to dismiss, the court found that the plaintiff failed to plausibly allege that the products tested were the actual products purchased. The court also observed that the seven-month gap between the purchase and testing suggested the samples could have been PFAS-free when collected and may have become contaminated with PFAS after collection, through no fault of the defendants. The court also noted that the Second Amended Complaint lacked specificity when describing the testing conducted because it failed to state when the products for the second and third rounds of testing were collected, how many samples were collected and tested for each product line, or whether all tested samples tested positive for PFAS. Finally, the court explained that to the extent samples tested in July 2024 were purchased by the plaintiff around that time, those purchases would have occurred after the plaintiff commenced this lawsuit, at which point he could no longer claim he was misled by the product’s label.

One day later, on September 30, a Minnesota federal judge similarly granted a motion to dismiss a putative class action brought by two Minnesota residents against chemical manufacturers, alleging that the defendants manufactured, marketed, and/or sold stain and soil repellants containing PFAS that were applied to carpets.

In dismissing the complaint without prejudice, the court found that the plaintiffs failed to adequately allege standing because like the orange juice plaintiff, they could not say the products they actually purchased had contained PFAS products. Instead, the plaintiffs attempted to rely on generalized statements from a California Department of Toxic Substances Control report that referred to a 2017 presentation by the Carpet and Rug Institute stating that “most” residential and commercial carpets were treated with PFAS-based repellents. But without more, the court found that these statements were insufficient to establish an injury in fact.

The court further held that the plaintiffs failed to connect any alleged injury to the conduct of the named defendants, noting the complaint conceded in the involvement of other PFAS producers, and observing that PFAS could be applied to carpets at multiple stages, including by retailers or consumers themselves.

These decisions are part of a larger trend in PFAS class actions, which suggests that courts across the country are viewing these actions with a healthy dose of skepticism — as they should. Ultimately, the issue of standing in these cases would be easy to correct, if not avoided altogether, if these products had intentionally added PFAS, but they do not. For this reason, a plaintiff cannot simply purchase a product and have it tested to establish standing; instead, their attorneys are likely purchasing reems of products and relying on the one or two samples that have somehow become unintentionally contaminated with PFAS. We would expect these lawsuits to dry up in relatively short order, but the plaintiffs’ bar will undoubtedly find a different path to liability.

The ArentFox Schiff Consumer Products group is continuing to monitor trends in PFAS litigation and all issues affecting products, and is available to answer any questions you may have. Please feel free to reach out to the authors or any attorney on our Consumer Products team.