Mandatory Disclosure on "Forever Chemicals," PFAS, in One State Propagates Consumer Class Action in Another
In what appears to be a new pathway for PFAS litigation, California plaintiffs recently filed a lawsuit against the manufacturer of BIC razors stemming from disclosures the company made under Maine's PFAS law, which were subsequently publicized by a nonprofit group following a freedom of information request.
The lawsuit, filed in the Northern District of California, alleges that the manufacturer of the popular BIC razor brand disclosed its intentional use of per- and polyfluoroalkyl substances, better known as PFAS, to the State of Maine pursuant to a highly scrutinized state law requiring such disclosure, but failed to disclose its use of PFAS to customers. Preceding the lawsuit, a public advocacy group, Defend Our Health, obtained records from the state pursuant to a freedom of information request. Ten days after Defend Our Health publicized the names and information of several companies that made disclosures to the State of Maine, out-of-state plaintiffs, who are California residents, filed a class action in federal court stating they would not have bought the razors had they known they were exposing themselves to "toxic chemicals that pose undue health risks, even at low levels."
The Maine law in question, which was recently amended, bans intentionally added PFAS in many products sold within the state. The law bans different categories of products in phases over time, with the ban on the last group of products becoming effective in 2040. Until passage of the amendments in mid-April 2024, companies were obligated to report to the Maine Department of Environmental Protection any products that included intentionally added PFAS. That reporting requirement has now been amended to require disclosure only of certain products for which the Maine Department of Environmental Protection has determined PFAS use in the products is currently unavoidable.
Looking ahead, the lawsuit is likely to prompt similar litigation against other companies that have disclosed PFAS under the Maine law or comparable state regulations. Additionally, the theory advanced could lead to litigation stemming from disclosure requirements in other states that require disclosure of substances other than PFAS, such as fragrances and allergens.
