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PFAS impacts back-to-school

9/5/24

By: Noël Couch and Kevin M. Ringel

While students are returning to classrooms this fall, schools are responding to test results that show their water systems may be contaminated with Per- and Poly- fluoroalkyl Substances (PFAS). Also known as “forever chemicals,” PFAS include a broad class of manmade, highly stable chemicals that exhibit both grease- and water-repelling properties and are alleged to cause a host of negative health effects including certain types of cancer. Earlier this year, the Environmental Protection Agency (EPA) announced new regulations requiring public water systems complete initial monitoring for PFAS by 2027 and implement solutions that reduce excessive levels of PFAS by 2029. As state environmental departments test water systems, results showing elevated levels of PFAS have caused schools to take action. Responses include notifying parents, providing bottled water, installing a filtration system, closing off water fountains, and posting signs instructing students and staff not to drink water from the sinks. 

At the same time, consumer brands are capitalizing on “PFAS-free” products such as backpacks, lunchboxes, water bottles, and cleaning products. The trend coincides with a rise in states that have enacted laws regulating PFAS in children’s products. Notably, California bars the manufacture, distribution, and sale of any new juvenile product containing PFAS; and following research finding high concentrations of PFAS in school uniforms advertised as “stain-resistant,” the state bans the manufacture, distribution or sale of any new textile articles that contain regulated PFAS starting January 1, 2025. 

Earlier this year, the United States District Court for the Northern District of Illinois, Eastern Division dismissed a proposed class action lawsuit filed against clothing retailer The Children’s Place for allegedly selling school uniforms containing PFAS without proper warnings. Among other considerations, the Court held the plaintiffs lack standing to pursue injunctive relief, explaining that any such relief would require only that The Children’s Place stop misrepresenting its products, not that it manufacture them in a manner that the plaintiffs prefer. Garland v. Children’s Place, Inc., No. 23 C 4899, 2024 WL 1376353, at *5 (N.D. Ill. Apr. 1, 2024). In another win for consumer products companies defending themselves against PFAS-related allegations, apparel and equipment retailer REI defeated a proposed class action lawsuit alleging it deceptively markets waterproof clothing containing PFAS as safe and sustainable. The United States District for the Western District of Washington dismissed the case, explaining that even though testing showed PFAS in some products, the plaintiff failed to establish that the jacket he purchased is substantially similar. The Court held it was “not enough” for the plaintiff to try to establish his jacket is substantially similar by asserting that the products are “manufactured by REI and consist of waterproof or water-resistant fabric” and are “similarly marketed and sold.” Krakauer v. Recreational Equip., Inc., No. C22-5830 BHS, 2024 WL 1494489, at *4 (W.D. Wash. Mar. 29, 2024). 

As the courts continue to review PFAS-related complaints, the new case law along with state legislation will shape industry decision-making and regulations. With schools seeking to eliminate PFAS from their water systems and brands aiming to produce PFAS-free juvenile products, education institutions and consumer product companies will want to follow this topic and related cases carefully.

For additional information, please contact Noël Couch at noel.couch@fmglaw.com, Kevin M. Ringel at kevin.ringel@fmglaw.com, or your local FMG attorney.