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April 18, 2022

Focus on Forever – April 18, 2022


Focus on Forever provides real-time updates, legal observations, and actionable tips to navigate the constantly evolving legal challenges involving PFAS. In this edition, we discuss the most recent developments in the Hardwick v. 3M class-certification saga, consumer product PFAS litigation prompted by recent claims published in the media regarding the presence of PFAS in certain products, new state legislation regulating PFAS, several recent PFAS-focused articles in widely-read popular media, and our upcoming PFAS webinars.

Look for new editions approximately every two weeks and please feel free to reach out to the King & Spalding team if you have any questions regarding PFAS issues.

Amici Curiae File Brief with Sixth Circuit to Overturn Class Certification in Hardwick 

Litigation Follows Reporting on PFAS in Consumer Products 

New Legislation on PFAS 

PFAS in the National News 

King & Spalding to Host Additional PFAS Webinars 

What We Are Reading Now

Amici Curiae File Brief with Sixth Circuit to Overturn Class Certification in Hardwick
We’ve been reporting on the Hardwick class certification decision.  The district court certified a class seeking medical monitoring and the establishment of a “Science Panel.”  Defendants then filed petition in the Sixth Circuit for permission to immediately appeal.

The U.S. Chamber of Commerce, the American Tort Reform Association, and the National Association of Manufacturers (represented by King & Spalding) filed an amicus brief at the end of March in support of the petition.  The brief begins by noting that “[t]here is a line between litigation and regulation, and this case blows right past it” by, in effect, creating an extremely wide-ranging investigation of a huge number of PFAS chemicals through an injunction-based class action funded by the defendants in the underlying litigation.  The brief argues that the Sixth Circuit “precedents favor interlocutory review of such an extraordinary order, which raises novel questions, rests on faulty reasoning, and could sound the ‘death knell’ for the defense.  Indeed, the certification order uses an untenable liability theory to justify a massive class action that pushes the limits of Rule 23 and the broader principles of injunctive relief.”  We will make sure to keep readers up to date on how the Sixth Circuit chooses to proceed. 

Litigation Follows Reporting on PFAS in Consumer Products

Lawsuits Underway Following Reports of PFAS in Underwear

Yoga pants are not the only clothing products that have become popular subjects of PFAS testing in the media.  As some readers may recall, over the last several years, various menstrual underwear products have been tested for PFAS—a company called Mamavation tested various menstrual underwear products for PFAS and reported that “65% of products tested could be contaminated with PFAS” and testing requested by the Sierra Club also identified more than de minimis levels of PFAS in the underwear products tested. 
 
Such reports of PFAS in menstrual underwear products have already led to multiple class action complaints filed against clothing manufacturers—one in 2020 in the Central District of California (Kanan v. Thinx, Inc., 20-cv-10341), another in 2021 in the District of Massachusetts (Blenis v. Thinx, Inc., 21-cv-11019) and yet another just this month in the Northern District of California (Rivera v. Knix Wear, Inc., 22-cv-2137).

These class action complaints are similar in that they seek to establish classes that would include any and all persons who purchased the relevant underwear products (nationwide for the first and third complaint, while the second complaint limited the proposed class to Massachusetts residents).  The complaints seek injunctive and monetary relief (including punitive damages) under various theories of liability including breach of warranty, negligence – failure to warn, unjust enrichment, and various state consumer protection and fraud statutes.  The most recent complaint also adds general fraud theories.  Each of the complaints remain pending as of the time of publication. 

Anti-Fog Spray Study Triggers Lawsuit

Back in January we reported on a study that tested anti-fog sprays for PFAS.  Last month, the same firm that filed the most recent underwear complaint mentioned above also filed a class action complaint against an anti-fog manufacturer in the Eastern District of California (Dawood v. Gamer Advantage LLC, 22-cv-562).  The complaint references the study we featured in paragraph two.  Careful readers may notice a pattern between published reports of testing products for PFAS and subsequent claims.  
The complaint here is very similar to the most recent underwear complaint—it seeks to establish a nationwide class of all purchasers of the anti-fog spray.  It seeks injunctive and monetary relief (including punitive damages) under fraud, breach of warranty, negligence – failure to warn, unjust enrichment, and various state consumer protection and fraud statutes.  This Newsletter will follow these and other consumer product complaints as they continue to increase. 

New Legislation on PFAS

Washington States Passes New Bill Increasing Government’s Ability to Regulate PFAS in Consumer Products

At the end of last month, Washington State Governor Jay Inslee signed a new bill into law titled “Priority Chemicals in Consumer Products – PFAS Chemicals.”  This act amends the State’s current regulation of priority chemicals in consumer products so that Washington’s Department of Ecology can consider any PFAS-containing product identified in the department’s final PFAS chemical action plan from November 2021 to be a priority consumer product under the State’s Safer Products for Washington statute.  The November 2021 action plan identified numerous potential products containing PFAS, including carpets and rugs, products treated for water and stain resistance, leather and textile furnishings, cosmetics, dental floss, cleaning agents, and ski waxes, among other products.  But this amendment will set in motion the development of regulatory actions (that could include additional disclosures and reduction or elimination of PFAS in consumer products) for the identified products by the middle of 2024, with an eye towards implementing any state-level regulation concerning those products by the end of 2025.

Maryland Expected to Pass Act Banning PFAS from Certain Products

Both chambers of the Maryland legislature have passed the Environment – PFAS Chemicals – Prohibitions and Requirements (George “Walter” Taylor Act), a piece of legislation named after a firefighter whose death from neuroendocrine cancer was allegedly the result of prior PFAS exposure.  If enacted, the bill would prohibit “using, manufacturing, or knowingly selling or distributing” firefighting foam, carpet, rugs, or certain food packaging that contain PFAS as an intentionally added ingredient.  After unanimously passing the Senate, many believe Maryland Governor Larry Hogan will sign the bill into law shortly.  The law, if enacted, would prohibit the sale of the listed products beginning January 1, 2024.  

New Study of PFAS

U.S. Geological Survey Authors Publish Study Identifying PFAS in Groundwater Used as a Source of Drinking Water in the Eastern U.S.

Several authors affiliated with the U.S. Geological Survey recently published the results of their testing for 24 PFAS (and various other potential contaminants such as tritium, volatile organic compounds (VOCs), and dissolved organic carbon (DOC)) in 254 groundwater samples collected in 2019.  At least one PFAS chemical was detected in 54% of the samples tested, and at least two PFAS chemicals were detected in 47% of the samples tested.  Overall, 60% of the public-supply samples were positive for at least one PFAS while 20% of the private wells were positive for at least one PFAS chemical.  In addition, the study authors conducted boosted regression tree models in an effort to predict the presence of PFAS in groundwater using existing data such as the concentrations of tritium, VOCs, and DOC in groundwater as well as other data such as urban land use percentages and distance to nearest fire-training areas.  The authors suggest continuing to develop targeted sampling related to PFAS to develop predictive models for identifying PFAS occurrence in U.S. groundwater. 

PFAS in the National News

Both the Washington Post and The New York Times Publish Widely Read PFAS Features this Week.

The Washington Post published an article focusing on the PFAS saga of Adam Nordell and Johanna Davis, owners of Maine’s Songbird Farm since 2014.  Earlier this year, Maine’s Department of Inland Fisheries and Wildlife and Maine’s Center for Disease Control and Prevention jointly published a report on PFAS in deer in the Fairfield area of Maine—close to the couple’s organic farm.  That led a concerned customer of the organic farm to reach out to the couple to inform them that their farm had been treated in the 1990s with “industrial sludge” potentially contaminated with PFAS and allegedly traceable to a disposable dishware manufacturer in the region.  The couple then tested certain produce, soil, and water at the farm, finding PFAS at levels 400 times greater than Maine’s current drinking water standard.  The couple also ordered two over the counter blood tests to determine the amount of PFAS in their blood, with the results claiming that the couple had PFAS at levels 250 times greater than the average American.  This prompted the couple—who had not been involved in PFAS issues in any way before this point—to become highly active in this area, testifying before the state legislature in support of financial aid and land buyout options for people in similar positions as well as raising awareness for potential health effects of PFAS.  Maine’s legislature is now contemplating a bill that would provide, among other items, compensation to affected landowners and monitoring the health of individuals whose agricultural lands are found to be contaminated by PFAS. 

The New York Times recently published an overview of “what you should know about PFAS” following Consumer Reports’ recent investigation of PFAS in food packaging (discussed in detail in our March 29, 2022 issue).  According to The New York Times, you should know some basics (that loyal readers of this page undoubtedly already know):

  • PFAS are everywhere—from food products to human blood to polar bears to even the bottom of the ocean—because these chemicals were used in a variety of different products and they are highly resistant to breaking down over time given the strength of the chemicals’ carbon-fluorine bond;

  • PFAS regulations in the U.S. are a patchwork of state and federal guidelines, with the federal government increasing its activity following last year’s PFAS Strategic Roadmap; and

  • Some studies on certain PFAS chemicals have suggested possible increased risk of certain cancers, immune system issues, and fetal development.  On this point, The Times also quoted a Brown University epidemiologist who opined that there is not “an immediate disaster” or “an immediate threat to health” generally from PFAS in the U.S.  And, circling back to the Consumer Reports investigation, the Times noted that the FDA recommends not reading too much into reports that food products may have “detectable” levels of PFAS given that safety assessments have not shown cause for concern. 

Again, this is helpful background for those who are not regular readers of our humble Newsletter. 

King & Spalding To Host Additional PFAS Webinars

From April 26 to 28, King & Spalding is hosting our Class Action University—a three-day, multitrack virtual university offering nine cutting-edge legal insight sessions on emerging and hot topics, including PFAS. We are also hosting in-person receptions in San Francisco and Atlanta. Connect with your peers and enjoy drinks, light bites and lively conversation. To request an invitation or if you have any questions, contact Jeany Choi at mailto:jchoi@kslaw.com.

And on May 17 from 12-1:15 pm ET, King & Spalding will host the second installment of its PFAS webinar series. The upcoming session is titled “How PFAS Legal Issues Impact Companies in Real Life: Representative Case Studies” and will detail how PFAS legal issues play out in real life. We will use representative case studies from both the apparel and food & beverage sectors to illustrate the wide range of PFAS related legal challenges that companies in virtually any industry can face day-to-day. Please register by May 10 here.

What We Are Reading

Northern District of Georgia Allows PFAS Water Contamination Case to Proceed
Researchers Estimate Levels of PFAS Exposure from Wearing and Disposing of Facemasks
EPA Schedules Public Meetings of the Science Advisory Board PFAS Review Panel
National Restaurant Chains Pledge to Eliminate PFAS from Food Packaging