Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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Software Gains New Status as a Product Under Strict Liability Law

MAHA Commission Publishes Report to Highlight Childhood Chronic Disease Drivers

Tenth Circuit Denies Challenge to CPSC Rule Regulating High-Powered Magnets

Ousted CPSC Democrats Fight Back Against President Trump

Setting Consumer Standards for Lithium-Ion Batteries Act

On September 18, 2024, the Consumer Product Safety Commission (CPSC) unanimously approved a new mandatory standard for nursing pillows designed to address risks presented by suffocation, entrapment, and fall hazards associated with these products. All nursing pillows manufactured for sale will need to meet the new requirements 180 days after their publication in the Federal Register.Read the <a href="https://www.mofo.com/resources/insights/241203-cpsc-approves-new-safety-standard-for-nursing-pillows" target="_blank">full client alert</a>.

CPSC Approves New Safety Standard for Nursing Pillows

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

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Matt is an associate in the Litigation Department in MoFo’s San Diego office. Matt’s practice focuses on the product lifecycle, from early product development to litigation to end-of-life advisement. He counsels clients through complex consumer product safety regulatory landscapes and product recalls.











Matt Robinson

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Rachel Kaiser is an associate in the Litigation Department of Morrison Foerster’s San Diego office.

Rachel A. Kaiser

Rachel Kaiser

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CPSC Approves New Safety Standard for Nursing Pillows

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In an <a href="https://www.cpsc.gov/s3fs-public/SHEIN-Temu%20Statement_0.pdf?VersionId=P5kXZK7RL8_vlDYvoxj_wcNBsPOqWDbV" target="_blank">open letter</a> published on September 3, 2024, Consumer Product Safety Commission (CPSC) Commissioners Peter Feldman and Douglas Dziak called for an investigation into foreign-owned e-commerce platforms Shein and Temu to determine how these companies meet applicable obligations imposed by the Consumer Product Safety Act. Commissioners Feldman and Dziak asserted that Shein, Temu, and similarly situated e-commerce companies, “raise specific concerns,” including reports that “deadly baby and toddler products are easy to find on these platforms.”Read the full <a href="https://www.mofo.com/resources/insights/241203-cpsc-calls-for-an-investigation-into-shein-and-temu" target="_blank">client alert</a>.

CPSC Calls for an Investigation into Shein and Temu

On October 21, 2024, the Supreme Court declined to hear a challenge to the structure of the Consumer Product Safety Commission (CPSC). As we explained in a <a href="https://www.mofo.com/resources/insights/240730-cpsc-commissioners-and-executive-power" target="_blank">previous blog post</a>, under CPSC’s current structure, the president of the United States can remove CPSC commissioners from office only for neglect of duty or malfeasance. If the Supreme Court had granted certiorari, the Court would have considered whether the president should have the authority to remove appointed CPSC commissioners at will or for cause only.Read the full <a href="https://www.mofo.com/resources/insights/241203-supreme-court-declines-to-hear-challenge-to-structure-of-cpsc" target="_blank">client alert</a>.

Supreme Court Declines to Hear Challenge to Structure of CPSC

Courts around the country are grappling with <a href="https://www.govinfo.gov/content/pkg/USCODE-2022-title47/pdf/USCODE-2022-title47-chap5-subchapII-partI-sec230.pdf" target="_blank">Section 230 of the Communications Decency Act</a>. Section 230 generally shields online platforms from liability for content posted by third-party users, but courts are now deciding if it can also protect online platforms from product liability claims. Plaintiffs have recently attempted to circumvent Section 230’s robust immunity by bringing claims against online platforms based on theories of product liability, contending that Section 230 cannot protect against such claims.Described by one scholar as the “twenty-six words that created the internet,” Section 230 provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, Section 230 protects online platforms from civil liability for third-party content posted by a platform’s users.The Scope of Section 230Passed in 1996, the Act was created in response to two cases contemplating how to handle online forums where users could post comments. These cases highlighted that existing law was ill-equipped to handle liability issues that accompanied the rise of the internet, and prompted lawmakers to create legislation that would encourage and protect free speech online. Since it was enacted, Section 230 has allowed online platforms to operate without fear of liability for content posted by third parties.Litigants have repeatedly argued over the statute’s scope and the extent of its protections. Yet, in keeping with the deferential language in the statute, courts have consistently construed the protection offered by Section 230 broadly, holding that Section 230 offers online platforms near-total immunity from civil liability for providing a forum for information created by third parties.This expansive understanding of Section 230 has historically required dismissal of practically all claims against internet companies for content posted to their platforms by third-party users.But recently Section 230 has come under increasing fire from the plaintiffs’ bar, who argue that the law as interpreted by courts provides online platforms with too much protection from liability involving user-generated content. In an effort to circumvent these protections, plaintiffs’ attorneys have begun to rebrand claims against online platforms as product liability claims based on the allegation that the platforms are defectively designed “products.”A Traditional Section 230 DefenseA Section 230 defense contains three elements: First, the online platform must be a provider of an interactive computer service, such as a social media website. Second, the cause of action must treat the defendant as the publisher of the content in question. And, third, the content in question must have been provided by someone other than the defendant (generally, a third-party user of the online platform).No one disputes that social media and communications platforms meet the first two elements. The focus is on the third element: whether the content in question was provided by the online platform as a publisher or by a third-party user. Traditionally, courts have dismissed claims against social media companies as barred by Section 230 because the companies cannot be considered the “publishers” of third-party content. As plaintiffs pursue product liability cases, however, they have tried to shift the focus of their claims away from this test.The Product Liability ArgumentRecently, some courts have been forced to evaluate product liability claims against tech companies and online platforms in cases alleging that the platforms are defective “products” rather than publishers of third-party content with Section 230 immunity. Some courts are finding that the inquiry is highly fact-based and cannot be determined on the face of the pleadings, allowing these cases to survive motions to dismiss.But consistent with historic precedent, other courts have continued to reject claims brought against online platforms based on Section 230. These courts have asserted that tech companies are still immune under Section 230, despite plaintiffs’ efforts to re-brand their claims.For example, the Fifth Circuit upheld a lower court’s decision that the defendant could not be liable for sexual abuse that allegedly occurred over its photo-messaging app. Although the plaintiff attempted to characterize their argument as a negligent design claim, the court found that the plaintiff ultimately sought liability for information provided by a third-party user—which Section 230 expressly prohibits.Tech companies have responded to plaintiffs’ attempt to recharacterize Section 230 by setting forth how Section 230 is critical to their business model. Limiting the scope of Section 230’s protection, they caution, would lead to online censorship and curb free speech. Supporters of Section 230’s protections have also noted that permitting claims against online platforms based on theories of product liability would render the Act nearly meaningless and encourage the kind of misdirected litigation that Section 230 was designed to prevent.Looking AheadCourts have had many opportunities to weigh in on Section 230’s ability to foreclose product liability claims, but often sidestep the issue. The Supreme Court has yet to weigh in, but this issue seems prime for future review.Although the weight of authority counsels that Section 230 immunizes editorial content and algorithm recommendations, the Third Circuit recently bucked that trend, finding that the extent to which the software pushes content on users is relevant to the Section 230 inquiry. In August 2024, the Third Circuit found that Section 230 did not immunize TikTok against claims arising from the death of a 10-year-old girl who attempted a self-asphyxiation “blackout challenge” that she saw on the app. The Third Circuit, in reversing the district court’s order granting TikTok’s motion to dismiss, held that Section 230 did not shield TikTok from liability because the platform curates recommendations and “expressive content” to users through its “For You Page” algorithm. TikTok has moved for rehearing en banc, arguing that its algorithm serves a “publisher” function that has long been held to enjoy Section 230 immunity.In 2022, Justice Clarence Thomas <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/akveadbzzvr/frankel-doevsnap--thomasfacebook.pdf" target="_blank">called for</a> SCOTUS to take up the matter and decide the scope of Section 230, stating: “Assuming Congress does not step in to clarify Section 230’s scope, [the Court] should do so in an appropriate case.” Based on Thomas’s statement and the inconsistency of lower court rulings in recent years, guidance from the Supreme Court seemed imminent. But in July 2024, the Court declined to grant certiorari in a case appealing a Fifth Circuit ruling that prevented the plaintiff from bringing suit against a social media company based on Section 230 immunity. Justice Thomas, joined by Justice Neil Gorsuch, dissented from the Court’s decision not to hear the case, writing, “[M]ake no mistake about it—there is danger in delay. . . . Social-media platforms have increasingly used Section 230 as a get-out-of-jail free card.”Until the issue is settled by the Supreme Court, companies that run online platforms should continue to take precautions to protect themselves from possible product-liability exposure. For example, software developers should carefully consider what warnings might be appropriate on the platform and continue to refine best practices with respect to possible safety concerns as they design this software. We encourage developers to consult with counsel to discuss whether Section 230 can protect against product liability and other safety‑related claims directed at their platforms and will continue to provide updates on these issues.

The Future of Section 230: Protection Against Product Liability Claims?

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Ashley E. Quinn is an associate in Morrison Foerster’s San Diego office.

Ashley E. Quinn

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The Future of Section 230: Protection Against Product Liability Claims?

High Court Orders Rethink Of $9.7M Award After TransUnion

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Passed in 1996, the Act was created in response to two cases contemplating how to handle online forums where users could post comments.

This month, California chaptered two new bills, <a href="https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=202320240AB2515" target="_blank">AB 2515</a> and <a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202320240AB347&showamends=false" target="_blank">AB 347</a>, regulating per- and polyfluoroalkyl substances (PFAS) in menstrual products and juvenile products, textile articles, and food packaging, respectively. The California laws are just the latest in a rising tide of PFAS legislation restricting the chemicals in consumer products. Nearly half of U.S. states have recently enacted or are considering such laws. Following an initial wave of state-level legislative efforts targeting the use of PFAS in firefighting foam, these current initiatives have expanded the reach to consumer product categories, such as food packaging, cookware, cosmetics, children’s products, textiles, menstrual products, and carpets and rugs.Manufacturers, distributors, and retailers across industries are bracing to comply with the rapidly developing patchwork of laws, including by reformulating products and packaging or moving away from PFAS altogether.[1]The following provides a look at the current landscape of laws across the U.S. restricting PFAS in consumer products.[2]Consumer Product State Laws – Enacted and Proposed<div data-reactroot=""><img class="rich-text-embed-image" alt="Consumer Product state law map" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt66641550d1927ae8/67227d4b9fad556b64e1eb1e/consumer-product-state-law.png?format=auto&amp;quality=60"/></div><a href="https://www.maine.gov/dep/spills/topics/pfas/PFAS-products/" target="_blank">Maine</a> and <a href="https://www.pca.state.mn.us/get-engaged/pfas-in-products" target="_blank">Minnesota</a> have been the most aggressive. Both states have passed laws that will prohibit the sale of all products containing intentionally added PFAS.[3] A growing number of states may soon follow suit. The California, Illinois, New York, Vermont, and Wisconsin legislatures have each also proposed to ban the use of PFAS in all products.Other states are taking a more piecemeal approach, addressing the use of PFAS category-by-category. For instance, prior to proposing a ban on PFAS in all products, California enacted legislation that prohibits—or will eventually prohibit—the use of PFAS in apparel, carpets and rugs, food packaging, children’s products, and personal care products. As reflected in the list below of products covered by enacted laws, several other states have done the same, and many more such bills are pending. Other product-category-specific legislation that has been proposed includes <a href="https://legiscan.com/CA/text/AB2761/id/2930517" target="_blank">California’s AB 2761</a>, prohibiting the use of PFAS in plastic packaging; <a href="https://ilga.gov/legislation/fulltext.asp?DocName=&SessionId=112&GA=103&DocTypeId=HB&DocNum=1282&GAID=17&LegID=143392&SpecSess=&Session=" target="_blank">Illinois’s HB 1282</a>, prohibiting the use of certain PFAS chemicals in cosmetic products; and <a href="https://www.njleg.state.nj.us/bill-search/2024/A1421" target="_blank">New Jersey’s A1421</a>, restricting PFAS in cosmetic products, carpet or fabric treatments, and food packaging.<table><tbody><tr><td>State</td><td>Products Regulated by Enacted Legislation</td></tr><tr><td>California</td><td>Food packaging, cookware, juvenile products, cosmetics, menstrual products, textiles</td></tr><tr><td>Colorado</td><td>Outdoor apparel or severe wet conditions, cleaning products, cookware, dental floss, menstrual products, ski wax, textile articles, food equipment for use in commercial settings</td></tr><tr><td>Connecticut</td><td>Apparel, carpets/rugs, cleaning products, cookware, cosmetics, dental floss, fabric treatments, children’s products, menstrual products, textile furnishings, ski wax, upholstered furniture</td></tr><tr><td>Hawaii</td><td>Food packaging</td></tr><tr><td>Maine</td><td>All products (by 2032); restrictions on carpets/rugs, fabric treatments, cleaning products, cookware, cosmetics, dental floss, juvenile products, menstruation products, textile articles, ski wax, upholstered products, artificial turf, outdoor apparel for severe wet conditions in stages, leading up to full prohibition</td></tr><tr><td>Maryland</td><td>Rugs/carpets, cosmetics, food packaging</td></tr><tr><td>Minnesota</td><td>Food packaging, carpets/rugs, cleaning products, cookware, cosmetic products, dental floss, fabric treatments, juvenile products, menstrual products, textile furnishings, ski wax, upholstered furniture, cannabis/hemp packaging</td></tr><tr><td>New Hampshire</td><td>Carpets/rugs, cosmetic products, textile treatments, feminine hygiene products, food packaging and containers, juvenile products, upholstered furniture, textile furnishings</td></tr><tr><td>New York</td><td>Carpets, food packaging, children’s products</td></tr><tr><td>Oregon</td><td>Foodware containers, cosmetics</td></tr><tr><td>Rhode Island</td><td>Food packaging, artificial turf, carpets/rugs, cookware, cosmetics, fabric treatments, juvenile products, menstrual products, ski wax, textile articles</td></tr><tr><td>Vermont</td><td>Cosmetics, menstrual products, aftermarket stain and water-resistant treatments, artificial turf, cookware, incontinence protection products, residential carpets/rugs, ski wax, textiles, food packaging</td></tr><tr><td>Washington</td><td>Food packaging, cosmetics</td></tr></tbody></table>Many of these laws have labeling and reporting requirements as well. For example, <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB1200" target="_blank">California</a> requires cookware manufacturers to list on their label the presence of PFAS, while <a href="https://www.cga.ct.gov/2024/ACT/PA/PDF/2024PA-00059-R00SB-00292-PA.PDF" target="_blank">Connecticut</a> requires that manufacturers of certain products, such as apparel, cleaning products, and cookware, provide a report to the Connecticut Department of Energy and Environmental Protection outlining the use and amount of PFAS in the product. And notably, the U.S. Environmental Protection Agency promulgated <a href="https://www.mofo.com/resources/insights/240426-pfas-manufacturers-and-importers" target="_blank">retroactive reporting and recordkeeping requirements</a> for PFAS under the Toxic Substances Control Act (TSCA).[4] Under the new TSCA requirements, any entity that manufactures or manufactured PFAS or PFAS-containing articles in any year since January 1, 2011 must report certain information to EPA regarding PFAS uses, production volumes, disposal, exposures, and hazards.[5]Generally, state PFAS laws are enforced by a regulatory agency or the state attorney general, and penalties range from $500 to $25,000 per violation or per day. However, when California’s AB 2515 was introduced, it contained a private right of action that would have allowed private plaintiffs to enforce California’s menstrual product labeling requirements and prohibition on cosmetic products containing intentionally added PFAS. The final version of the bill passed by the legislature this summer omitted this authority, allaying concerns in the regulated community that AB 2515 would spur a cottage industry around private enforcement, like <a href="https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=HSC&division=20.&title=&part=&chapter=6.6.&article" target="_blank">Proposition 65</a> has.Heightened Regulatory Focus on PFASThis wave of legislative action at the state level has been fueled by increasing scrutiny in recent years regarding the potential environmental and health effects of PFAS and is a response to a lack of comprehensive federal legislation. Lawsuits brought under state consumer protection statutes against manufacturers for undisclosed PFAS in their products are on the rise. While some studies have linked PFAS exposure to reproductive and developmental harm and increased risks of cancer, there remains disagreement and uncertainty about both (1) the extent to which these substances are distributed in local environments and (2) the specific danger they might pose. This disagreement is apparent in the lack of harmony across state laws and the products selected for regulation. Because there are thousands of different types of PFAS, it has been difficult to identify and understand the effects of various PFAS chemicals on humans and the environment.Nonetheless, EPA has actively sought to address PFAS in the environment over the past few years. In 2021, EPA announced the Agency’s <a href="https://www.epa.gov/pfas/pfas-strategic-roadmap-epas-commitments-action-2021-2024" target="_blank">PFAS Strategic Roadmap</a> that set out what EPA calls “a whole-of-agency approach to addressing PFAS.” To date, under this comprehensive approach, EPA has:<ul class="li-text-orange"><li class="li-text-orange"><a href="https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-critical-rule-clean-pfas-contamination-protect" target="_blank">Designated PFOA and PFOS as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act</a></li><li class="li-text-orange"><a href="https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas" target="_blank">Issued a drinking water standard for PFAS</a></li><li class="li-text-orange"><a href="https://www.epa.gov/pfas/interim-guidance-destroying-and-disposing-certain-pfas-and-pfas-containing-materials-are-not" target="_blank">Updated interim guidance on the destruction and disposal of PFAS-containing materials</a></li><li class="li-text-orange"><a href="https://www.epa.gov/newsreleases/biden-harris-administration-announces-new-steps-protect-communities-pfas-and-other" target="_blank">Proposed regulations that would list nine PFAS as hazardous constituents under the Resource Conversation and Recovery Act</a></li><li class="li-text-orange"><a href="https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense-authorization-act" target="_blank">Added PFAS to the list of chemicals covered by the Toxics Release Inventory</a></li><li class="li-text-orange"><a href="https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/tsca-section-8a7-reporting-and-recordkeeping" target="_blank">Required reporting for PFAS manufactured and used in the United States under TSCA</a></li></ul>In the coming years, the EPA intends to take further action to better understand and regulate PFAS, including issuing new health standards and limits for PFAS, developing new methods to detect and measure PFAS, and promulgating new rules to reduce PFAS discharges into the environment.[6]While EPA has taken action to address PFAS in the environment, the Consumer Product Safety Commission has yet to propose PFAS regulations for consumer products. In September 2023, the <a href="https://www.federalregister.gov/documents/2023/09/20/2023-20332/per--and-polyfluoroalkyl-substances-pfas-in-consumer-products" target="_blank">CPSC issued a notice to request information</a> on PFAS “used in commerce or potentially used in consumer products, potential exposures associated with the use of PFAS in consumer products, and potential human health effects associated with exposures to PFAS from their use in consumer products.” However, to date, the CPSC has not introduced regulation regarding PFAS in consumer products.Mitigating Risk of EnforcementIn response to heightened litigation risk and the challenge of complying with burdensome and conflicting state laws, many companies are preemptively moving away from the use of PFAS. In August 2019, <a href="https://www.dupont.com/news/dupont-announces-new-and-sustained-commitments-related-to-pfas-chemicals.html" target="_blank">DuPont announced</a> a slate of commitments that would reduce its use of PFAS. In February 2023, <a href="https://www.rei.com/newsroom/article/rei-co-op-raises-bar-for-companies-operating-in-outdoor-industry?srsltid=AfmBOoqnh3p7JNlqJu1DKbPYNbr4aXwcNkhAHvArTEKAta2jJ9HDhc7s" target="_blank">REI Co-op announced</a> that it would be phasing out the sale of products containing PFAS in its stores. Other companies have made similar commitments, including <a href="https://www.patagonia.com/stories/say-goodbye-to-forever-chemicals/story-133800.html" target="_blank">Patagonia, Inc.</a>, <a href="https://stories.starbucks.com/stories/2022/starbucks-innovates-tests-and-learns-from-store-partners-to-achieve-waste-goals/" target="_blank">Starbucks Corp.</a>, and <a href="https://www.tacobell.com/newsroom/taco-bell-2020-commitments?selectedTag=&selectYear=2020" target="_blank">Taco Bell Corp.</a>Yet, for many companies, especially where PFAS is integral to product functionality or safety attributes, the move away from PFAS could take years. These companies are investing substantial resources into research and development to create or identify viable alternatives to PFAS. And even for those who have alternatives, there are other hurdles that can impede efforts to comply with new laws or mitigate litigation risk. For instance, PFAS may be added to product components along the supply chain without the company’s or product manufacturer’s knowledge or control. Likewise, there are a lack of widely available testing capabilities to detect and distinguish PFAS chemicals.To address these hurdles, it is imperative for companies affected by PFAS consumer protection laws to develop risk mitigation strategies, enact policies, and implement controls across their supply chain. Best practices include, among other things, adding PFAS to supplier/manufacturer restricted substances lists and requiring lab testing for intentionally added PFAS on product components.We expect to see increasingly stringent laws restricting the use of PFAS and intensified focus by the plaintiffs’ bar on civil actions as consumer awareness of PFAS in products evolves. To stay at the forefront of these developments, we actively monitor courts and legislatures for changes affecting our clients. Our collaborative teams of Environmental and Consumer Products attorneys regularly advise clients regarding consumer protection laws and are available to assist with PFAS compliance programs and strategic risk mitigation.[1] This client alert does not cover laws that regulate only organohalogenated chemicals or other flame retardants.[2] This map does not include laws that do not expressly regulate PFAS in consumer products, such as <a href="https://www.leg.state.nv.us/App/NELIS/REL/81st2021/Bill/7397/Text" target="_blank">Nevada’s AB 97</a>, which establishes a working group to study issues related to environmental contamination from PFAS.[3] The prohibitions would not apply to products for which the use of PFAS is a “currently unavoidable use.” Minnesota defines this as “a use of PFAS that the [Minnesota Pollution Control Agency] has determined by rule . . . to be essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.” Min. St. § 943.[4] 15 U.S.C. § 2601 et seq.[5] 40 C.F.R. § 705 et seq.[6] For a detailed discussion of EPA’s actions regarding PFAS, see EPA’s <a href="https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf" target="_blank">PFAS Strategic Roadmap: EPA’s Commitments to Action 2021–2024</a>.

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Krista deBoer

New Wave of PFAS Legislation Aimed at Consumer Products