The Franchise Memorandum

Over the last three months, McDonald’s, Burger King, and Cava Grill have been subject to a wave of consumer-product class actions involving a group of chemicals known as per- and polyfluoroalkyl substances or “PFAS.” Plaintiffs in the lawsuits Hussain v. Burger King (N.D. Cal. Apr. 11, 2022); McDowell v. McDonald’s (N.D. Ill. Mar. 31, 2022); Clark v. McDonald’s (S.D. Ill. Mar. 28, 2022); and Hamman v. Cava Group (S.D. Cal. Apr. 27, 2022), bring similar causes of action and seek similar remedies. (Cava operates a chain of fast casual restaurants; none are franchised.) The lawsuits allege that the restaurants misrepresented the safety and quality of their food in advertising statements because the packaging was coated with PFAS, which plaintiffs contend can leach into the food and potentially cause harm to human health. In all cases, the plaintiffs seek monetary damages and injunctive relief, and three of the four lawsuits request medical monitoring. At this time, the lawsuits name only the restaurant franchisors or corporations as defendants and do not target individual franchisees or restaurant locations.

PFAS are class of over 5,000 different chemicals referred to as “forever chemicals,” a reference to their non-stick and grease-, oil-, and water-resistant properties. These physical properties make PFAS useful in a variety of applications, including cookware, food packaging, and food processing. While the scientific research is not conclusive, the plaintiffs allege that the use of PFAS in food packaging creates a consumer health risk because PFAS can leach into the food. These lawsuits do not allege tort-based personal injury claims, instead relying on claims arising from the misrepresentation of the restaurants’ products as safe based on violations of consumer protection and false advertising laws. They also rely in part on third-party testing reports, such as a Consumer Report investigation that allegedly found elevated levels of total organic fluorine in food packaging from several restaurants. We will likely see the number of PFAS lawsuits targeting the food industry―as well as other consumer products such as cosmetics, clothing and carpeting―continue to increase. This litigation risk, combined with potential for media attention and increasing regulatory pressure will require companies in these industries to closely monitor this trend.