A California district court recently dismissed two lawsuits that asserted that the marketing of certain tampons was misleading due to the alleged presence of per and polyfluoroalkyl substances (“PFAS”), holding that plaintiffs could not rely on conclusory assertions regarding testing that allegedly detected PFAS in the products.
The plaintiffs in the lawsuits—Lowe v. Edgewell Personal Care Co, No. 23-cv-00834-AMO, 2024 WL 150758 (N.D. Cal. Jan. 12, 2024)—alleged that defendant’s o.b. Organic™ tampons and Playtex Gentle Glide tampons contained PFAS, which plaintiffs claim are “harmful even at extremely low levels of exposure.” Because the products allegedly contained PFAS, plaintiffs claimed that various representations about the products—including that they were organic, simple, safe, gentle, or purified—were false and misleading under various consumer protection statutes.
Plaintiffs based their claims primarily on their own “independent third-party testing” that they allege confirmed the presence of PFAS in the tampons at issue. However, as the court noted, plaintiffs did not actually test for PFAS in the products. That is because, by the complaint’s own admission, “‘it is impractical, if not impossible for scientists and researchers to test for the presence’ of the 12,000+ PFAS currently in existence by using a ‘targeted analysis method.’” Instead, plaintiffs tested for “organic fluorine,” a substance they alleged is “a surrogate or proxy for PFAS chemicals, meaning its presence is indicative that a sample contains PFAS.” Even so, plaintiffs did not specify the results of their testing; they alleged only that the “testing uniformly showed that the finished Tampon Products contained PFAS.”
The court held that such “cursory” allegations were insufficient to plausibly allege that the tampons contained PFAS. The complaints were “silent as to the amount of organic fluorine detected and whether that amount is negligible or significant,” and contained “no allegations about whether the organic fluroine [sic] may be indicative of natural sources or is largely, if not exclusively, linked to forever chemicals” (i.e., PFAS). In other words, plaintiffs’ allegations failed to bridge the gap between their testing and their conclusion that the tampon products contained PFAS. Although defendants also argued that organic fluorine testing is never sufficient to allege the presence of PFAS, the court declined to adopt that position. Instead, the court focused on the lack of detailed allegations regarding the results of plaintiffs’ testing, holding that plaintiffs’ allegations were “devoid of the factual content necessary to nudge Plaintiffs’ claims . . . from possible to plausible.”