Key Takeaways
In rejecting Plaintiffs’ Total Organic Fluorine (“TOF”) testing for the detection of PFAS, the Northern District of California suggests that a “proxy” test that does not target the specific compound at issue is insufficient to meet even the relatively low plausibility standard on a motion to dismiss. Moreover, the opinion suggests that a plaintiff must establish levels at or above the regulatory threshold to plausibly allege harm.
On October 15, the Northern District of California granted with leave to amend The Proctor & Gamble Company’s (“P&G”) motion to dismiss a putative consumer class action alleging P&G mislabeled tampons containing per- and polyfluoroalkyl substances (“PFAS”) contrary to their “pure and organic representations.” Bounthon v. The Proctor & Gamble Co., Case No. 23-cv-00765-AMO, 2024 WL 4495501, at *1 (N.D. Cal. Oct. 15, 2024).
First, the court rejected plaintiffs’ Total Organic Fluorine (“TOF”) testing because they did “not plausibly allege[] that the presence of organic fluorine, as detected by their TOF analysis, indicates that the Tampon Products contain PFAS.” Id. at *8. In doing so, the court joined other courts that have expressed skepticism that TOF testing can be used as a proxy to support allegations about the presence of PFAS in consumer products (See Dechert Re:Torts Issues 11 and 13.) The court concluded that the inference that TOF testing can establish the presence of PFAS is “not plausible” because TOF testing may detect organofluorine chemicals that are not PFAS. Id. The court noted the need for a “targeted PFAS analysis,” id., suggesting that proxy methodologies that do not target the specific compound at issue may generally be insufficient to survive a motion to dismiss.
Second, the court held that “[e]ven if Plaintiffs had plausibly alleged . . . the presence of PFAS[,]” they failed to establish that PFAS are present “at a harmful level.” Id. at *9. The Court rejected plaintiffs’ allegation that “any concentration of PFAS . . . is harmful,” emphasizing that the sources on which plaintiffs relied undercut the plausibility of their claims. Id. The court pointed to a study cited by plaintiffs that labeled 100 parts per million (“ppm”) as “trace concentrations” of PFAS and a California statute setting the regulatory level for PFAS in consumer goods at or above 100 ppm. Id. Because 100 ppm was “well above the 30 [ppm] that plaintiffs allege they detected[,]” the court found that plaintiffs failed to plausibly allege harm. Id.
Following this ruling, on November 5, plaintiffs submitted their third-amended complaint, now alleging that their “independent testing has confirmed that the Tampon Products contain organic fluorine” above trace amounts, which is indicative of the presence of PFAS or “other concerning compounds such as refrigerants, pharmaceuticals, or pesticides.” ECF No. 80-1 at ¶¶ 10, 66, 68 (emphasis added).
