PFAS Playbook

PFAS, also known as the “forever chemicals”, are a group of man-made compounds whose potential presence in cosmetics and other personal care products have drawn the scrutiny of academic institutions, legislators, and consumers alike. The heightened attention over their use in a variety of consumer products, including cosmetics for texture and consistency, and for effects on skin, such as smoothing or conditioning, have led to state laws banning the sale of such products containing PFAS and class action lawsuits over their marketing claims.

PFAS content in cosmetics has received heightened attention over the past year. In June 2021, Environmental Science and Technology Letters published a study conducted by researchers from the University of Notre Dame who found “high” fluorine content (above 0.384 ug/cm2) in 52% of the 231 products they tested. High fluorine content is an indicator of PFAS content, but only 8% of the products tested listed PFAS as an ingredient. The researchers tested 29 of the high fluorine content products for PFAS, and found at least four in each. In November, website Mamavation published a study of 83 products from 49 “green” cosmetics brands, and found “high” levels of fluorine (above 30 ppm) in 65%.

In mid-December, a class action was filed alleging that a cosmetics brand falsely advertised its cosmetics as “clean and conscious”, “pure” and “free of harsh chemicals” due to the presence of PFAS in the products. The complaint references the Notre Dame study, and alleges that the plaintiffs’ own testing revealed PFAS in each of the products. The defendant’s deadline for responding to the complaint has been extended to April 12.

A second lawsuit was filed at the end of the month by a nonprofit against a second cosmetics brand, alleging that it had falsely advertised certain of its cosmetics as “sustainable,” “good-for-you makeup” from “the original clean brand.” The complaint takes many of its allegations from the company’s sustainability report. The complaint seeks an injunction prohibiting the defendants from violating the consumer protection act. The deadline for responding to the complaint has been extended to March 1.

A third class action was filed in mid-February, alleging that another brand falsely advertised its products as “formulated without chemicals of concern” and “kind to skin & planet.” This complaint takes its allegations substantially from the Mamavation report, but makes many of its allegations based on Mamavation’s reports of the conclusions of the Notre Dame study. Its allegations of PFAS content are limited to the levels of organic fluorine found by Mamavation. The response to the complaint is due April 22.

A fourth class action was filed last week with allegations that depart in a significant way from the allegations in the first three complaints. This most recent complaint targets claims that “the quality and safety of our products are our priority” and that the company is “going above and beyond industry standards by providing the best ingredients ….” That is to say that this class action is not targeting the sort of “green” or “pure” claims alleged in the other suits, but just basic claims about quality and safety. There is not as of yet any indication that the complaint has been served.

There is also a significant amount of PFAS legislation pending at both the state and the federal level, including many bills that are or would be applicable to cosmetics:

Enacted:

• Maine: no intentionally added PFAs by 2030, reporting by Jan. 1, 2023
• Maryland: no intentionally added PFAs in cosmetics by Jan. 1, 2025

Introduced:

• California: cosmetics
• Massachusetts: personal care products, among others
• Minnesota: cosmetics
• New York: all products
  Vermont: cosmetics
• Washington: cosmetics
• Federal: cosmetics

Several PFAS have also been added to California’s Proposition 65 List. California’s AB-2762, enacted in 2020, will ban products to which any of 13 PFAS have been intentionally added. SB 343, enacted last October, will ban “recyclable” claims for any item with intentionally added PFAS or PFAS present at a level above 100ppm.

These developments likely have significant implications for many sorts of labeling and advertising practices. Generally, to prevail on a deceptive advertising claim, a plaintiff must show that the advertiser directed misleading representations at consumers. It is for this reason that the class action complaints target the “clean,” “pure,” “sustainable,” and “healthy” sorts of representations made by the companies. Without such representations, it is not at all clear that the plaintiffs would have any particular recourse. Further, questions remain to be answered about whether indirect testing for organic fluorine is sufficient to show the presence of PFAS in a product, or whether one or more sorts of direct PFAS tests will be required. There are also basic questions about whether PFAS represent a health risk to humans and, if so, in what concentrations. Different answers to these questions could substantially change the landscape of both PFAS legislation and PFAS litigation.