There has been a recent uptick in false advertising consumer protection lawsuits relating to the presence of Per- and Poly-fluoroalklyl Substances (PFAS) in consumer products. What, exactly, are PFAS? Nicknamed “forever chemicals” because they do not break down in the environment, PFAS are a diverse group of many man-made chemicals, ubiquitous in the environment, that have been used in commercial products and industrial processes worldwide since the 1940s. Although the science on the health effects of PFAS is far from settled, some studies have suggested that, at certain levels, PFAS could be harmful to humans. PFAS have long been the subject of products liability and mass tort litigation, where plaintiffs bring actions for personal injuries allegedly caused by the presence of PFAS in commercial products and the environment.
Given the presence of PFAS in consumer products, including cookware, clothing, cosmetics, and even food packaging, false advertising claims challenging the safety of consumer products (usually based on label misrepresentations and/or a failure to disclose alleged health risks purportedly associated with the presence of PFAS) reflect a trend seen in recent years. In this context, plaintiffs generally allege economic injury based on a benefit-of-the-bargain theory and/or overpayment theory. A recent motion to dismiss decision from the Southern District of California provides meaningful insight for purposes of assessing Article III standing in these cases.
In Solis v. CoverGirl Cosmetics et al., the plaintiff alleged that she purchased the defendants’ beauty product marketed as “safe for use” and “sustainable,” when in reality the product contained harmful and carcinogenic PFAS chemicals.1 The plaintiff alleged that she relied on these representations and believed the product to be safe and sustainable based on the product’s packaging as well as advertising on CoverGirl’s website, including that CoverGirl is “on a sustainable path” and its products are “dermatologically tested."2 According to the plaintiff, this advertising is misleading because the product contains PFAS, making it unsafe and unfit for use.3
The defendants moved to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. On March 7, 2023, the district court granted the defendants’ motion, finding that the plaintiff did not establish Article III standing because she failed to sufficiently allege that she suffered a concrete economic injury arising from her purchase of the product.
In rendering its decision, the Solis court focused on the Article III standing requirement that the plaintiff’s alleged injury was concrete, addressing and rejecting the plaintiff’s two main theories for her alleged economic injury: benefit-of-the-bargain and overpayment.4
Under the benefit-of-the bargain theory, Solis alleged that she bargained for a product that was “safe” but received a product that was unsafe because it contained PFAS.5 The district court found this argument unpersuasive because neither the product’s packaging nor the brand’s website affirmatively represented the product as “safe.” In addition, the product’s label expressly disclosed the presence of PTFE in the ingredient list.6 In this regard, the court relied on two Ninth Circuit cases, Birdsong and McGee, which reasoned that the benefit-of-the-bargain theory fails where “there is no identifiable misrepresentation concerning the purported benefit of which the plaintiff was allegedly deprived” and “the product’s labeling or packaging discloses the alleged benefit is not part of the bargain."7
Under the overpayment theory, the plaintiff alleged that she would not have paid what she did for the product if she had known it contained PTFE.8 The Court summarily rejected this argument because the product’s label disclosed that PTFE was one of the ingredients and, significantly, Solis alleged in her complaint that PFAS chemicals are “widely known” as toxic.9
Accordingly, the court held that the plaintiff did not sufficiently allege how she suffered a concrete economic injury arising from her purchase of the makeup product and granted the defendants’ motion to dismiss for lack of subject-matter jurisdiction.10
In light of the litigation landscape, consumer products companies should be aware of this decision among a notable growing list of PFAS false advertising cases. The good news, however, is that companies facing these suits stand a chance at obtaining an early dismissal, as in Solis.
1 Yeraldinne Solis v. CoverGirl Cosmetics et al., No. 22-cv-0400-BAS-NLS (S.D.Cal. March 7, 2023).
2 Id. at 4.
3 The plaintiff conceded, however, that the product’s label disclosed PTFE, a PFAS derivative, as an ingredient, and there are no federal or state regulations prohibiting the use of PFAS in cosmetic products. Id. at 5.
4 Id. at 11.
5 Id. at 12.
6 Id. at 12-13.
7 Id. at 14.
8 Id. at 15-19.
9 Id. at 19.
10 Id. at 23.