The recent growth of litigation involving per- and polyfluoroalkyl substances (PFAS) has focused on firefighting foam, cosmetics cases, and industrial sites using and disposing of PFAS-containing materials. Now, emboldened by the USEPA’s announcement in 2021 that it seeks to define certain PFAS as “hazardous substances” under CERCLA, plaintiff’s attorneys appear to be expanding the scope of PFAS litigation to a wider array of businesses. That widening net has now been cast to include the fast-food industry and its food containers, a move that could form a class that includes nearly every American.
On March 28, 2022, and on April 11, 2022, two class actions began against fast-food giants, McDonald’s and Burger King in Illinois and California, respectively. The cases allege similar class action theories, economic damages, compensatory damages for injury, and punitive damages. Both suits allege that the companies sold products they knew were unfit for consumption and posed a significant health risk.
Like claims against the cosmetics industry, the suits do not claim a specific bodily injury. Instead, the suits claim violations of state consumer protection statutes, violation of Consumer Fraud and Deceptive Business Practices statutes, breach of express warranties, breach of implied warranty and unjust enrichment among other things. Instead of seeking damages for bodily injury, plaintiff is seeking injunctive relief, compensatory and punitive damages, restitution, and attorney fees.
Plaintiff’s attorneys are relying on various sources for their theories, one source being Consumer Reports review of food products and PFAS. Most recently, Consumer Reports tested 100 varieties of food containers from over 24 big-name food businesses, not just McDonald’s and Burger King. They found PFAS chemicals in many types of packaging, from paper bags for french fries and wrappers for hamburgers to molded fiber salad bowls and single-use paper plates.
As studies on PFAS continue, claims against the fast-food giants may, in time, expand to include bodily injury. The lawsuits even hint at this likelihood, claiming that PFAS persist and accumulate over time and are harmful “even at very low levels.” The suits further allege that PFAS have health risks associated with various kinds of cancer, altered growth and behavioral risks to infants and children, increased cholesterol, impact on the immune system, liver disease, decreased fertility, asthma, and thyroid disease. However, the McDonald’s complaint also states that “Scientists are studying –and extremely concerned about–how PFAS affect human health and how the risk may be underestimated.” While such a statement is rather powerful wording, it also suggests a clear defense to potential bodily injury claims because a lawsuit cannot be based on hypotheses or what “may” cause injury but must be based on actual causation.
The Burger King Complaint seems to go a bit further. In the Burger King matter, the Complaint alleges the Plaintiff, and the class, are entitled to damages for injuries sustained from being exposed to high levels of PFAS. However, the damages sought only include a request for medical monitoring to safeguard the class members’ health and mitigate damages for future medical treatment. This request appears to be carefully crafted to protect class certification because, as many courts have noted, the questions surrounding a plaintiff’s injury necessarily require individualized examination of the injury and causation that tends to block class certification.
For now, experienced litigation observers can quickly surmise that the McDonald’s and Burger King lawsuits are just the beginning of litigation targeting food industries. And, should the claims expand beyond consumer protection claims into bodily injury matters, the litigation will likely expand to potentially include packaging suppliers and chemical companies. The McDonald’s suit even mentions that McDonald’s packaging for its hash-browns was developed by 3M, one of the largest producers of PFAS in the country. Although these suits represent a predicted expansion of PFAS litigation to the food packaging and fast-food industry, what comes next will likely follow the traditional mass product and mass toxic tort litigation pattern. That pattern says we can expect more of these suits across the industry and, in time, an expansion that targets manufacturers and inclusion of bodily injury claims. Considering the astronomical number of people who have eaten fast food or take-out of any kind over the past few decades, it is likely this supersizing of PFAS litigation related to food packaging has only just begun.
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