A federal judge in the Northern District of Illinois recently ruled that reasonable consumers would not be deceived by the labels on two popcorn products, because consumers do not consider migratory chemicals to be food "ingredients." Thus, the labels describing the products as using "healthy" and "natural" ingredients were not false or misleading, notwithstanding the plaintiff's allegations that PFAS had seeped into the products from their packaging, These lawsuits are among a wave of litigation alleging various products expose consumers to PFAS chemicals, which are associated with numerous health concerns.
While the outcome in these cases was obviously a "win" for the food and beverage industry, few expect the ever-increasing trend of PFAS lawsuits to end anytime soon. What began as litigation against the chemical companies that created PFAS, has now morphed into cases against downstream manufacturers who incorporate PFAS into their products and their product's packaging (like Conagra, in these popcorn cases), retailers of those products (including some grocery store chains), and even companies disposing of PFAS-containing items. According to one source, at least 1,235 PFAS lawsuits were filed in 2021 alone. And while data for 2022 is not yet available, it is expected that last year's number will be even larger.
If the age-old saying "misery loves company" is true, at least the food and beverage industry can take some comfort in the fact that it will not be alone in having to defend against PFAS cases into the foreseeable future.