The Proposed Costco Class Action Makes Clear That No Product Is Exempt From PFAS Litigation

On June 20, Costco and Nice-Pak Products, Inc. were hit with a proposed class action in California federal court regarding Costco’s fragrance-free Kirkland Signature Baby Wipes. The plaintiffs allege that although the baby wipes are advertised as “made with Naturally Derived Ingredients,” testing conducted by the plaintiffs’ counsel at an independent laboratory revealed the wipes contain 3.7 parts per billion of per- and polyfluorinated substances (PFAS), otherwise known as “forever chemicals.”

Although the complaint characterizes this result as demonstrating “dangerous levels of toxic PFAS chemicals,” it does not identify the specific PFAS found (meaning their actual toxicity cannot be assessed), nor does it identify the test method used. According to the plaintiffs, their test results are inconsistent with the label’s alleged promise of natural ingredients, which they claim is particularly dangerous for babies because of their sensitive skin, lower body weight, and developing organ systems.

The proposed plaintiffs brought claims against Costco and Nice-Pak Products, Inc., alleging that Nice-Pak Products, Inc. manufactured the baby wipes under the Kirkland name, and that Costco thereafter sold the baby wipes to consumers. They claim violations of state unfair competition laws, advertising laws, consumers legal remedies acts, as well as breach of warranty, fraud, negligent misrepresentation, and unjust enrichment.

This proposed class action is yet another example of the uptick in lawsuits against manufacturers and retailers involving allegations that products contain unsafe (or any) amounts of PFAS. Last month, we reported on the proposed class action against BIC USA Inc., also filed in the Northern District of California, concerning allegations that some of its razors contain PFAS. In early June, the plaintiffs brought a proposed class action in the Northern District of California against Illuminati Labs and RiseWell, LLC alleging that the RiseWell Kids Mineral Toothpaste, which was advertised as “natural” and “safe to swallow,” contains high levels of PFAS. As recently as last week, a proposed class action was filed against Kenvue Inc. and Johnson & Johnson Consumer, Inc. in the Eastern District of New York over allegations that their adhesive bandages, known as “Band-Aids,” contain dangerous levels of PFAS.

Despite the growing trend in PFAS lawsuits, liability is not without limit. The Southern District of New York, for example, recently granted the defendant beverage manufacturers’ motion to dismiss in a case concerning allegations that independent testing by the plaintiff revealed the presence of multiple PFAS in the defendants’ juice product. The Southern District of New York, in dismissing the plaintiff’s amended complaint without prejudice, held that the plaintiff lacked standing because he relied on only one test sample and he was unable to connect that sample to the juice that he had purchased.

Another issue product liability plaintiffs will face is that if PFAS are in everything, as they appear to be, it will be difficult, if not impossible, to demonstrate that any one product is responsible for their injury. Market share liability, which has rarely been applied anyway, is unlikely to apply in the context of consumer products with widely varying degrees and types of PFAS contents. Therefore, product manufacturers and sellers should focus on labeling, as that is likely where the greatest exposure lies. By remaining vigilant about PFAS content and understanding what the law requires them to disclose (and how), manufacturers can mitigate this exposure.

The Consumer Products group at ArentFox Schiff is standing by to answer questions about how your company can avoid Costco’s current predicament and more. Please feel free to reach out to the authors or any attorney on our Consumer Products team.


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