WHAT IF I PURCHASED FOOD PACKAGING OR COOKWARE THAT CONTAINS PFAS?

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There is a growing recognition that per-and-polyfluoroalkyl substances (“PFAS”) are incompatible with the environment and human and animal health.  Researchers have linked PFAS to a long list of health effects, including fertility, high blood pressure, increased risk of certain cancers, developmental delays, low birthweight in children, hormonal disruption, and high cholesterol, amongst others.  Nonetheless, researchers continue to find PFAS in several categories of consumer products, including food-related products, such as disposable packaging and cookware.  

Fortunately, California has taken steps to protect consumers in those spaces.  Assembly Bill (“AB”) 1200, for example, codified at California’s Health & Safety Code, §§ 109010-109014, provides that “no person shall distribute, sell, or offer for sale in the state any food packaging that contains regulated” PFAS.  “Food packaging” refers to “a nondurable package, packaging component, or food service ware that is intended to contain, serve, store, handle, protect, or market food, foodstuffs, or beverages, and is comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers.”  The term also “includes food or beverage containers, take-out food containers, unit product boxes, liners, wrappers, serving vessels, eating utensils, straws, food boxes, and disposable plates, bowls, or trays.”   

As set out at Section 109000(a)(3), “regulated PFAS” means either (A) “PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product” or (B) the “presence of PFAS in a product or product component at or above 100 parts per million, as measured in total organic fluorine.”

California has also taken steps to require companies to disclose the existence of PFAS in cookware.  Section 109011(a) provides that “a manufacturer of cookware sold in the state that contains one or more intentionally added chemicals present on the designated list in the handle of the product or in any product surface that comes into contact with food, foodstuffs, or beverages shall list the presence of those chemicals on the product label.”  Specifically, that section provides the following template: “The list of intentionally added chemicals shall be introduced by the phrase ‘This product contains:’ and shall include on the product label a statement, in both English and Spanish, that read ‘For more information about chemicals in this product, visit,’ followed by both of the following:” (1) the website and (2) a quick response (“QR”) code.

Consumers may seek recourse under those statutes when applied in conjunction with California’s other consumer protection statutes, such as the Unfair Competition Law (“UCL”), California Business & Professions Code § 17200.  The UCL is a broadly drawn statute that forbids “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”  A UCL claim may be based on a predicate violation of another law.  So, for example, consumers may have recourse under the UCL when their food packaging contains PFAS because that would violate California’s Health & Safety Code § 109000(b).

Further, consumers may have recourse under more traditional false advertising theories if the advertising or labels are rendered false or misleading based on the existence of PFAS in its food packaging.  One such statute, California’s Legal Remedies Act (the “CLRA”), California Civil Code, §§ 1750-1784, makes the following practices unlawful: “representing that goods . . . have . . . approval, characteristics, ingredients, uses, benefits . . . that they do not have;” “advertising goods or services with intent not to sell them as advertised;” and “representing that the subject of a transaction has been supplied in accordance with a previous representation when it has not.”  And the CLRA is complemented by California’s False Advertising Law (the “FAL”), California Business and Professions Code, § 17500, which prohibits the dissemination of any information “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.”

Additionally, depending on the facts of the case, California’s consumers may also find support from California’s Song-Beverly Consumer Warranty Act provided at California Civil Code §§ 1790-1795.8.  For example, a consumer could potentially allege a violation of the implied warranty of merchantability, set out at California Civil Code § 1791.1(a).  That section provides consumer goods must “(1) pass without objection in the trade under the contract description; (2) are fit for the ordinary purposes for which such goods are used; (3) are adequately contained, packaged, and labeled; and (4) conform to the promises or affirmations of fact made on the container or label.”

Where a company explicitly makes statements about the nature of a product that are rendered false by the existence of PFAS, consumers may also be able to allege a breach of express warranty under the Song-Beverly Act.  An express warranty means: “(1) a written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance; or (2) in the event of any sample or model, that the whole of the goods conform to such sample or model.”

Importantly, aside from food packaging and cookware, consumers may have recourse if they detect PFAS in certain of their children’s items.  Likewise, certain PFAS are presently actionable under California’s Proposition 65.  Finally, starting January 1, 2025, further measures will take effect in relation to PFAS in cosmetics and apparel.  Until then, consumers may still have recourse for those consumer goods through California’s other consumer protection statutes.  Any consumer considering legal recourse should consult a qualified attorney who can evaluate the applicable laws, relevant legal developments, and specific facts of a given case.

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