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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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

<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

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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

Adam J. 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.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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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

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Alexandra Preece Barlow

Adam J. Hunt

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

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

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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.png" 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’s practice involves the full range of environmental, climate, and green claims issues. As a partner in MoFo’s Class Actions + Mass Tort practice group, Krista represents clients in environmental and toxic tort litigation, Proposition 65 litigation, and consumer class actions 

Krista S. deBoer

Krista deBoer

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al

Fitbit Force Recall 

People of the State of California v. The Coca-Cola Company

Seagate Technology LLC

Clif Bar, Inc.

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Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on climate-related goals and claims, hazardous substances, mass torts, and consumer product safety.

William Tarantino

Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on hazardous substances, mass torts, and consumer product safety.

William F. Tarantino

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Associate

Cedar Hobbs is an associate in MoFo’s Complex Litigation + Advisement Group in the San Diego office. His practice focuses on complex civil litigation and environmental law and regulation.

Cedar Hobbs

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Nevada Enacts CCPA-Style Opt-Out Right for Consumers—but Similarities Are Few

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This month, California chaptered two new bills, AB 2515 and AB 347, regulating per- and polyfluoroalkyl substances (PFAS) in menstrual products and juvenile products, textile articles, and food packaging, respectively.

Manufacturers and importers of Per- and Polyfluoroalkyl Substances (“PFAS”) must report information regarding all PFAS produced or imported since January 1, 2011, by either May 5, 2025, or November 10, 2025.The EPA recently finalized a rule requiring certain reporting and recordkeeping for PFAS under section 8(a)(7) of the federal Toxic Substances Control Act (“TSCA”). This rule requires any entity that manufactures or has manufactured PFAS or PFAS-containing articles in any year since January 1, 2011, to electronically report certain information to the EPA.Under TSCA, the term “manufacture” means to manufacture, produce, or import for commercial use. Thus, importers of PFAS or PFAS-containing articles are also required to report under this rule, but mere processors, distributors, users, and disposers of PFAS or PFAS-containing articles need not report. Companies should be aware, however, that this rule also covers incidental manufacturing and byproducts. If a company knows that it is manufacturing or has manufactured PFAS or PFAS-containing articles, or such information is reasonably ascertainable, it must report.There is no minimum volume or concentration exemption—any amount of PFAS known is reportable.Though the initial deadlines are over a year away, given the broad, retrospective reach of the rule, companies within scope of the rule should start preparing now for compliance. For many manufacturers and importers, complying with the rule will require the time-intensive task of gathering data from historical records.The rule requires companies to report, for each individual PFAS and for each individual year in which any PFAS was produced or imported since January 1, 2011, information including:<ul><li>The covered common or trade name, chemical identity, and molecular structure of each chemical substance or mixture;</li><li>Categories or proposed categories of use for each substance or mixture;</li><li>Total amount of each substance or mixture manufactured or processed, the amounts manufactured or processed for each category of use, and reasonable estimates of the respective proposed amounts;</li><li>Descriptions of byproducts resulting from the manufacture, processing, use, or disposal of each substance or mixture;</li><li>All existing information concerning the environmental and health effects of each substance or mixture;</li><li>The number of individuals exposed, and reasonable estimates on the number of individuals who will be exposed, to each substance or mixture in their places of work and the duration of their exposure; and</li><li>The manner or method of disposal of each substance or mixture, and any change in such manner or method.</li></ul>Most entities will have until May 8, 2025, to submit the required information, 18 months following the effective date of the final rule. Small manufacturers reporting exclusively as article importers will have until November 10, 2025, to submit the required information, 24 months following the effective date of the final rule. There is then a five-year record keeping period after submission to support future EPA activities informed by the data it receives pursuant to this rule.The EPA has non-exhaustively identified at least 1,462 PFAS covered under this rule, 770 of which are actively circulated in U.S. commerce.MoFo’s team of environmental attorneys regularly advises clients on compliance with TSCA and related regulations and are ready to assist companies that produce or import PFAS to comply with the EPA’s reporting and recordkeeping requirements.

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Michael Fine is an associate in the Litigation Department of Morrison Foerster’s Boston office.

Michael A. Fine

Michael Fine

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Manufacturers and importers of Per- and Polyfluoroalkyl Substances (“PFAS”) must report information regarding all PFAS produced or imported since January 1, 2011, by either May 5, 2025, or November 10, 2025.

Now is the Time for PFAS Manufacturers and Importers to Prepare for TSCA's Retrospective Reporting Requirements

Dorris v. Danone Waters of America is one of a growing number of lawsuits filed against companies for making claims regarding their carbon footprint. While similar cases have been winding through the courts, Dorris is the first case in which a federal judge has addressed whether a lawsuit challenging a carbon neutral claim can survive a motion to dismiss on the merits.On January 10, 2024, U.S. District Court Judge Nelson Román of the Southern District of New York ruled that a lawsuit against Danone Waters of America (“Danone”) involving “carbon neutral” claims on evian water bottles can proceed.<a href="#_ftn1" target="_self">[1]</a> The opinion, which noted that “consumers are confused” by the term “carbon neutral” and found that a reasonable consumer could be misled by the representation on the product’s label, may embolden the plaintiffs’ bar and spur more lawsuits targeting companies for carbon-related claims.Dorris’s ClaimsIn October 2022, plaintiff Stephanie Dorris filed a putative class action complaint against Danone, alleging that she was misled by Danone’s “carbon neutral” claims on its product “evian Natural Spring Water” bottled water to believe that evian’s manufacturing did not result in carbon dioxide releases to the atmosphere and paid a price premium based on that alleged misrepresentation.To support her claim, Dorris argued that “carbon neutral” is an ambiguous and deceptive term and pointed to various publications that she claimed showed that consumers either did not know what the term meant or often mistook it for “carbon zero” or “carbon free,” including a report by the <a href="https://pro.morningconsult.com/instant-intel/carbon-neutral-consumer-awareness'" target="_blank">Morning Consult</a>, which found that 30% of Americans did not know what the term meant, while 29% incorrectly defined the term. She also challenged the use of carbon offsets to substantiate “carbon neutral” claims, citing reports that argued that carbon offsets often overstated their impact on carbon reductions and calling the carbon offset economy “murky and highly questionable.”Finally, she alleged that Carbon Trust’s “carbon neutral” footprint logo on evian bottles was misleading. Carbon Trust is a third-party organization that verifies “carbon neutral” claims. Dorris claimed it was unclear from the logo whether the “carbon neutral” claim was based on Danone’s calculations or Carbon Trust’s calculations. Further, she alleged that, even if it were clear that the “carbon neutral” claim was based on Carbon Trust’s calculations, the claim would still be misleading because “[n]owhere on the packaging or the bottle does Defendant explain what Carbon Trust is, what their carbon neutral logo means, or how Defendant goes about achieving Carbon Trust’s standards.”Dorris brought claims under California, Massachusetts, and New York consumer protection laws. She also alleged breach of express warranty, breach of implied warranty, unjust enrichment, and fraud.Danone’s Motion to DismissOn April 27, 2023, Danone filed a motion to dismiss, arguing the label was not misleading because the water bottle stated that it was certified by Carbon Trust as “carbon neutral,” which was true, and that Dorris’s grievance was with Carbon Trust’s use of carbon offsets in its certification methodologies.Danone also argued that it did not need to provide a calculation of its carbon neutrality claims because certifications like the Carbon Trust logo “exist precisely to provide a ‘shorthand’ to avoid lengthy explanations.” Additionally, Danone argued that the water bottle provided a link to evian’s website, which provided further information on the product’s carbon neutral certification and associated standards. With respect to consumer deception, Danone contended no reasonable consumer would be misled by the label to believe that there was zero carbon footprint associated with the product—i.e., no consumer could reasonably believe evian water is transported from factories in the French Alps to the United States without emitting any carbon at all. To support its argument, Danone asserted that (1) no carbon zero products exist, (2) the dictionary definition of “carbon neutral” encompasses the use of carbon offsets, and (3) evian’s website discloses that there is a carbon footprint associated with the water bottle.The court ultimately dismissed Dorris’s claims under New York consumer protection laws and the claim of breach of implied warranty on technical pleading standards but, on the merits, was unpersuaded and allowed the Massachusetts and California consumer protection law claims and claims of breach of express warranty, unjust enrichment, and fraud to proceed.Notably, the court concluded that a “reasonable consumer could plausibly be misled by the ‘carbon neutral’ representation on the Product’s label.” Judge Román wrote that, rather than possessing a common meaning, “carbon neutral” was more “technical and scientific, unfamiliar to and easily misunderstood by the reasonable consumer.”The court disagreed with Danone’s claim that the link to evian’s website on the product was sufficient to clarify any representations because “reasonable consumers should not be expected to visit two separate websites and read several pages to fully understand the meaning of ‘carbon neutral’ and ‘certified by Carbon Trust.’”What Dorris Means for Carbon-Related ClaimsDorris v. Danone Waters of America marks a first in carbon claims litigation. Until now, other cases involving carbon offset claims, such as Dakus v. Koninklijke Luchtvaart Maatschappij,<a href="#_ftn2" target="_self">[2]</a> have been dismissed on standing grounds. Dorris is the first case in which a federal judge has directly engaged with the question of whether carbon-related claims, specifically carbon neutral claims, can mislead consumers. The Court’s suggestion that consumers are confused by the meaning of “carbon neutral,” and that website disclosures may not be sufficient to substantiate carbon claims on product labels, leaves many companies asking how they can adequately substantiate product claims. The ruling is likely to encourage many companies to re-evaluate product claims to mitigate litigation exposure.Dorris is also further evidence of growing skepticism of climate claims that rely on carbon offsets. As consumer demand for products and services with reduced climate impact grows, so does scrutiny of the burgeoning carbon offset market, also known as the voluntary carbon market, which has been largely unregulated to this point. As discussed in a <a href="https://www.mofo.com/resources/insights/230615-uncertainty-carbon-markets-novel-carbon-offset">prior client alert</a>, in 2023, various reports challenged the integrity of carbon offsets.<a href="#_ftn3" target="_self">[3]</a> And already in 2024, a similar report published by <a href="https://www.nature.com/articles/s41893-023-01259-6" target="_blank">Nature Sustainability</a> criticized cookstove projects as overestimating their impact by as much as 920%.<a href="#_ftn4" target="_self">[4]</a>States also are turning their attention to carbon-related claims and are beginning to consider legislation to address concerns about greenwashing. In a <a href="https://www.mofo.com/resources/insights/231018-california-enacts-ab-1305-to-strengthen-the-voluntary-carbon">prior client alert</a>, we discussed California’s Assembly Bill 1305, the Voluntary Carbon Market Disclosures Business Regulation Act (VCMDA), passed in October 2023. The VCMDA requires businesses making certain emissions-related claims, such as “carbon neutral,” to provide various disclosures on their websites substantiating those claims.MoFo will continue to monitor cases and legislative action relating to companies’ carbon-related marketing initiatives and evaluate the significance to our clients. MoFo’s broad-based ESG practitioners regularly advise companies in developing multi-pronged strategies to both set and meet climate goals, while mitigating the potential litigation and enforcement risk arising from ESG disclosures, marketing, and advertising.<a href="#_ftnref1" target="_self">[1]</a> Dorris v. Danone Waters of America, Case No. 7:22-cv-08717-NSR (S.D.N.Y. Jan. 10, 2024).<a href="#_ftnref2" target="_self">[2]</a> Dukas v. Koninklijke Luchtvaart Maatschappij, N.V., 1:22-cv-07962-RA (S.D.N.Y).<a href="#_ftnref3" target="_self">[3]</a> See, e.g., Nina Lakhani, <a href="https://www.theguardian.com/environment/2023/sep/19/do-carbon-credit-reduce-emissions-greenhouse-gases" target="_blank">Revealed: top carbon offset projects may not cut planet-heating emissions</a>, The Guardian (Sep. 19, 2023); Thales A. P. West et al., <a href="https://www.science.org/doi/10.1126/science.ade3535" target="_blank">Action needed to make carbon offsets from forest conservation work for climate change mitigation</a>, 381 Science 6660, 873 (2023); Patrick Greenfield, <a href="https://www.theguardian.com/environment/2023/jan/18/revealed-forest-carbon-offsets-biggest-provider-worthless-verra-aoe" target="_blank">Revealed: more than 90% of rainforest carbon offsets by biggest certifier are worthless, analysis shows</a>, The Guardian (Jan. 18, 2023).<a href="#_ftnref4" target="_self">[4]</a> Annelise Gill-Wiehl et al., <a href="https://www.nature.com/articles/s41893-023-01259-6.epdf?sharing_token=6-EF0XOytgy6s1HMyvFWUNRgN0jAjWel9jnR3ZoTv0PY5koFksowKMxA7MIi6wx9OA04W8v_UKPTy7CKTglfUCvTI93MdjiaHTsUGRasUK2DG7Mxl7htCwwOiKlSXJL-qkrLRw6h9BbxA17jIEjcKoqw2E6ucNSM00hdlxKJSKKG9tCl4u_QsBZMRGAHY8_c7Rkm3aAxc1oOKbZDAjvyYqa608R4kAF1p2JLxE90HR0UxpGv_tvIylLks5PVezAXSO-Hwmbp5-s5IFL_eVmYn4sJFnojXPv8yeAn1HJFj5f7zu560vpiaH809I7NeKU0lOJ14Y_UR7hohbu95z3RyWn8aju3Wp3V70s9p9-jI2c%3D&tracking_referrer=www.theguardian.com" target="_blank">Pervasive over-crediting from cookstove offset methodologies</a>, Nature Sustainability (Jan. 23, 2024).

Plaintiff Survives Motion to Dismiss in evian Water Bottle “Carbon Neutral” Suit

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Plaintiff Survives Motion to Dismiss in evian Water Bottle “Carbon Neutral” Suit

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Dorris v. Danone Waters of America is one of a growing number of lawsuits filed against companies for making claims regarding their carbon footprint.

The Morrison Foerster Privacy + Data Security team is unmatched in its ability to provide creative and practical advice concerning all stages of the information life cycle, from counseling on compliance with complex privacy laws, to resolving breach situations, to litigating privacy and data security claims and defending enforcement actions. We tapped our Privacy team—thought leaders in the field—to get their opinions on what is likely to happen in the privacy and data security sector in 2024.Read the <a href="https://www.mofo.com/resources/insights/231211-privacy-data-security-predictions-for-2024" target="_blank">full client alert</a>.

Privacy + Data Security Predictions for 2024

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Few lawyers in the world have Miriam Wugmeister’s breadth and understanding of privacy and data security laws, obligations, and practices. 

Miriam H. Wugmeister | Privacy and Data Security Lawyer

Few lawyers in the world have Miriam Wugmeister's breadth and understanding of privacy and data security laws, obligations, and practices. In the words of her clients, she is “extremely practical and phenomenally smart. Just about one of the best privacy advisers there is” (Chambers USA). Co-chair of Morrison & Foerster’s market-leading Global Privacy and Data Security Group and ranked among the top in the profession by all major directories, Ms. Wugmeister is regularly called upon by some of the world’s largest and most complex multinational organizations to confront their most difficult U.S. and international privacy challenges. “Tremendous at helping you come up with practical solutions to real problems” (Chambers USA), she develops cutting-edge solutions for clients that marry legal compliance with business realities.