WHAT IF ITEMS I PURCHASED FOR MY CHILDREN CONTAIN PFAS?

*** This information is provided subject to Litteral LLP’s Terms & Notices and is presented solely for informational purposes.  Because this information is general in nature, it should not be relied upon or treated as legal advice or a substitute for legal advice.  This information is presented in accordance with Litteral LLP’s aim of enhancing access to the law.  Litteral LLP expresses no opinion as to the merits of a particular case or a particular set of facts.***

It is becoming more apparent that per-and-polyfluoroalkyl substances (“PFAS”) are problematic to human, animal, and environmental health.  Researchers have linked PFAS to a long list of health effects, including fertility, high blood pressure, increased risk of certain cancers, developmental delays, hormonal disruption, and high cholesterol, amongst others.  The harmful effects of PFAS are particularly concerning for children because they are still developing.  Unfortunately, researchers continue to find PFAS in products marketed to children.  That may lead parents to wonder whether they have recourse if a product they purchased for their children contains PFAS. 

To this end, California has taken steps to address PFAS in children’s products.  In October 2021, Governor Newsom signed Assembly Bill (“AB”) 652 into law.  That bill is now codified at California’s Health & Safety Code, §§ 108945-108947.  Section 108946 provides that a manufacturer “shall not sell or distribute in commerce in this state any new, not previously owned juvenile product that contains regulated PFAS.” 

Section 108945(c)(1) clarifies that “juvenile product” means “a product designed for use by infants and children under 12 years of age, including, but not limited to, a baby or toddler foam pillow, bassinet, bedtime sleeper, booster seat, changing pad, child restraint system for use in motor vehicles and aircraft, co-sleeper, crib mattress, floor playmat, highchair, highchair pad, infant bouncer, infant carrier, infant seat, infant sleep positioner, infant swing, infant travel bed, infant walker, nap cot, nursing pad, nursing pillow, playmat, playpen, play yard, polyurethane foam mat, pad, or pillow, portable foam nap mat, portable infant sleeper, portable hook-on chair, soft-sided portable crib, stroller, and toddler mattress.”

Parents may seek to hold companies accountable for PFAS in children’s products when those statutes are 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, such that a UCL claim may be based on a violation of Section 108946.

Moreover, parents may have recourse under more traditional false advertising theories if the children’s products are marketed as not containing PFAS, or the advertising or labels are otherwise rendered false or misleading due to the presence of PFAS.  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.”  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.”

And depending on the facts of the case, California’s parents may also find support from California’s Song-Beverly Consumer Warranty Act provided at California Civil Code §§ 1790-1795.8.  For example, a parent could potentially allege a violation of the implied warranty of merchantability, set out at California Civil Code § 1791.1(a).  That section states that 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 a statement about the nature of a product that is rendered false by the existence of PFAS, parents 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.”

Individuals may also have recourse for PFAS in other categories of consumer products, such as certain disposable food packaging or cookware.  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 individual considering legal recourse should consult a qualified attorney who can evaluate the applicable laws, relevant legal developments, and specific facts of a given case.

*** This information is provided subject to the disclaimer above and Litteral LLP’s Terms & Notices.***