The restaurant industry could be the next battleground in the fight against PFAS
While the restaurant industry has largely avoided the controversy raging in courthouses, state homes and regulators’ offices over PFAS, six lawsuits recently filed against fast food restaurants suggest the industry may not stay above the fray much longer. Per- and polyfluoroalkyl substances (known as “PFAS”) are a catch-all term used to describe thousands of different “eternal chemicals” that break down incredibly slowly over time and are found in large numbers consumer products and in particular in product packaging. . Plaintiffs and consumer advocates have argued that these chemicals can cause a number of negative health effects in humans and animals, including an increased risk of cancer and an impact on the body’s immune system.
As media coverage of PFAS has increased in recent years, interest from legislators, regulators and plaintiffs’ attorneys has also increased. Initially, the intermittent lawsuits filed by PFAS plaintiffs tended to focus on cosmetics and similar consumer packaged goods. And, while plaintiffs in these cases enjoyed a number of early successes at the motion to dismiss stage, the restaurant industry managed to avoid widespread litigation. However, recent lawsuits against Burger King, McDonald’s and Cava alleging that the quick-service giants failed to inform customers of the presence of PFAS in their product packaging suggest that the PFAS litigation is rapidly heading to the bottom. catering industry and is likely to remain.
In April, the plaintiff Hussain vs. Burger King Corp. filed a putative class action lawsuit in California federal court alleging that Burger King is misleading its customers by failing to label its products as containing PFAS. According to the complaint, Burger King’s product packaging uses PFAS as a “barrier to prevent grease from escaping” and “leaking into people’s hands.” Not only did the plaintiff alleged that Burger King failed to label its products in a way that informed it of the presence of PFAS, but that the chain’s use of PFAS betrayed its marketing focus on safety and sustainability. .
In part, the plaintiff pointed to Burger King’s marketing slogans such as “Have It Your Way, the Real way[:] All the flavors you crave without the ingredients you don’t have” and “No secrets in our sauce,” which he says are incompatible with the use of PFAS in restaurant packaging. Seeking to represent a national class of Burger King consumers, the complaint seeks, among other things, compensatory, statutory and punitive damages, injunctive relief, and plaintiff’s attorneys’ fees to bring the action. Three days after the Hussain complaint was filed, Burger King was hit with a similar lawsuit in federal court in Florida –Rhonda Cooper vs. Burger King Corp. in the Southern District of Florida.
Burger King isn’t the only one targeted by a newly filed PFAS lawsuit. The Hussain and Cooper the complaints followed three different putative class action lawsuits filed in Illinois federal courts against McDonald’s raising similar allegations. The three suits, Clark v. McDonald’s Corp., Collora v. McDonald’s Corp., and McDowell v. McDonald’s Corp. each alleges that McDonald’s is misleading consumers about the presence of the allegedly harmful PFAS in its food packaging. Like the Burger King lawsuits, the plaintiffs in these cases pointed to various McDonald’s marketing slogans, such as “farm to fork” and “safe” and “sustainable” as inconsistent with the use by the PFAS restaurant in its packaging. Moreover, in the McDowell complaint, the plaintiff objected to the presence of the Forest Stewardship Counsel (“FSC”) logo on the product packaging, alleging that the logo “shows[s] lasting references to your buyers” (misleadingly, according to the McDowell applicant). As in HussainMcDonald’s plaintiffs seek a number of remedies, including compensatory, statutory and punitive damages, injunctive relief and attorneys’ fees.
Even more recently, the Cava group was sued in federal court in California at the end of April in Hamman c. Cava Group Inc. There, the complaint targeted certain bowls of Cava cereal and salads as unfit for human consumption due to “high levels” of fluoride, which could indicate the presence of PFAS. It further states that Cava advertises its products as “responsibly sourced, compostable, functional and now PFAS-free”, when this is not true.
To be sure, the restaurant industry is far from alone in being the target of PFAS consumer product litigation. For example, two consumers recently targeted Cover Girl and L’Oréal in alleged class action lawsuits filed in federal courts in New York and New Jersey, alleging that the cosmetics companies’ products misleadingly contained PFAS despite are marketed as “sustainable” and “clean”. Previously, another consumer sued Target and NatureStar in federal court in California alleging that NatureStar compostable products sold by the retailer are not 100% compostable given the presence of PFAS in the products. Packaged food manufacturers have also been targeted; Consumers recently attacked ConAgra with two lawsuits in federal courts in Illinois alleging that its Orville Redenbacher’s and BOOMCHICKAPOP popcorn products contained PFAS. And PFAS suits, in some cases, have been costly for companies to solve. For example, last year three manufacturers settled an $11.9 million lawsuit over the presence of PFAS in groundwater in a Michigan community. The plaintiffs had alleged that the defendants improperly disposed of PFAS used in their manufacturing processes, which then leaked into the community’s water system.
While PFAS litigation may be all the rage, it remains to be seen whether lawsuits against Burger King, McDonald’s and Cava succeed where similar lawsuits have failed in the past. For example, in 2020, a single plaintiff filed a number of lawsuits against fast-food restaurants, alleging that their polystyrene containers contained a chemical that is carcinogenic and negatively affecting reproductive health. In dismissing one of the lawsuits, the court for the Southern District of Florida in Echevarria vs. Taco Bell of America, LLCheld that, among other issues, the plaintiff did not allege how the containers actually made her sick.
Time will tell if PFAS plaintiffs fare any better in their lawsuits against the restaurant and fast food industries. However, until then, these companies will likely continue to be targeted for PFAS allegedly in their product packaging, particularly where plaintiffs and their attorneys can point to allegedly conflicting marketing statements touting sustainability or the restaurant’s commitment to sustainability. regarding food security.
Benjamin Abel is a partner at McGuireWoods LLP in Charlottesville, Virginia. He is a seasoned litigator with extensive experience representing clients in federal and state courts. He focuses his practice on representing clients in class action and product liability matters, with particular emphasis on food and beverage labeling claims.
R.Trent Taylor is a partner at McGuireWoods LLP in Richmond, Virginia. He focuses on complex class action defense with a focus on product class actions, public and private nuisance litigation, environmental contamination lawsuits, and the labeling of food, cosmetics, and supplements (including CBD) and safety issues.
S. Virginia Bondurant Award is a partner at McGuireWoods LLP in Richmond, Virginia. She is a trial and appellate attorney and handles a wide range of product liability cases, consumer class actions and commercial litigation across the country.