In prior newsletters, we covered the continued trend of consumer class actions related to the purported presence of PFAS in various consumer products. Below is an update on some additional recent activity:

• Kraft Heinz’s Strawberry Kiwi Capri Sun®: Several weeks ago, a plaintiffs’ firm that has filed several similar actions decided to launch another consumer class action complaint in the Northern District of Illinois targeting every kid’s favorite school lunch beverage: Strawberry Kiwi Capri Sun. The firm claims that its independent third-party testing of this particular flavor of the tasty beverage contained PFOA in amounts allegedly exceeding EPA’s recommended levels. The firm proposes a national class of all persons in the U.S. who purchased the drink and asserts now-familiar breach of warranty, consumer fraud, and unjust enrichment claims.

• Recreational Equipment Inc. (“REI”) Clothing: Also earlier this quarter, a plaintiffs’ firm that had filed a claim against REI in federal court in California has now decided to file another consumer class action claim against the clothing company in the Western District of Washington. The complaint alleges that testing conducted at the behest of the plaintiffs’ firm identified several thousand ppm of organic fluorine in several waterproof apparel items. The firm proposes a nationwide class and, like the case above, asserts various breach of warranty, consumer fraud, and unjust enrichment claims.

• Car Seat Proposed Class Action Dismissed: The Chicco lawsuit we discussed in August is no more. On November 30, 2022, the Eastern District of Pennsylvania dismissed plaintiffs’ complaint for failure to state a claim. The court began its analysis by noting that the law does not recognize a duty to disclose chemicals used to treat car seats: “[t]o put it simply, the law does not place any obligation on [manufacturers] to proactively disclose to consumers what, if any, chemicals it uses to treat its car seats.” Then, considering whether the company engaged in active misrepresentation, the court identified pleading failures for each claim that would preclude recovery and dismissed the complaint in its entirety. Similar results could follow in several of the other consumer class actions filed recently given the similarities between the allegations.