Personal injury and environmental plaintiffs have recovered billions of dollars over the last several decades since the dangers of per- and polyfluoroalkyl substances (“PFAS”), often referred to as “forever chemicals,” became publicly known. Plaintiffs have continued to successfully sue over cancers and other medical issues allegedly related to exposure to PFAS-contamination in drinking water or firefighting foam.
After a 2022 Consumer Reports investigation reported that PFAS were found in a broad array of consumer food packing, there has been a notable uptick in plaintiffs claiming a different form of injury related to PFAS—purported economic losses stemming from alleged misrepresentations or nondisclosures about PFAS content in consumer products such as food, beverages, cosmetics, and personal care items. Notably, these plaintiffs do not allege that they have suffered any actual physical injury, instead relying entirely on alleged economic injuries arising from violations of state consumer protection laws. The plaintiffs in these lawsuits generally rely on testing conducted by independent laboratories to establish the presence of PFAS in products or product types, testing which often is unrelated to the actual specimen that the plaintiff purchased (i.e., plaintiffs have not tested the actual products they purchased).
As these cases move through federal courts, they are sometimes susceptible to dismissal at the motion to dismiss stage, both for failure to state a plausible claim and for lack of Article III standing. This article surveys the current trajectory of federal courts at the motion to dismiss stage on consumer misrepresentation PFAS cases and provides practical insights for companies and litigants navigating these evolving standards.
Some PFAS consumer fraud defendants have found success in achieving dismissals through early FRCP 12(b)(1) motions challenging whether a plaintiff has adequately alleged an injury in fact sufficient to establish Article III standing. In order to establish standing, a plaintiff must have suffered an “injury in fact” that is fairly traceable to the defendant’s conduct and can be redressed by the court ruling in their favor.[1] A plaintiff has suffered an injury in fact when he or she can show a harm that is “concrete and particularized” (i.e., that they have personally and individually been affected) and “actual or imminent,” not merely hypothetical.[2]
In the context of consumer misrepresentation cases, courts generally recognize purely economic injuries in fact under two theories, the “price-premium” theory (otherwise known as the “overpayment” theory) or the “benefit-of-the-bargain” theory. The price-premium theory focuses on whether the plaintiff paid more for a product due to misleading claims about its safety or qualities, while the benefit-of-the-bargain theory addresses whether the plaintiff received less than what was promised by those claims (such as diminished value or utility) even if the price was not inflated.
In one recent case, Judge Nelson Román of the Southern District of New York rejected both theories, highlighting what a plaintiff must allege to survive a motion to dismiss.[3] In Lurenz, a plaintiff sued Coca Cola alleging violations of New York’s consumer protection laws on the basis that its Simply brand juice’s “All Natural” labelling was misleading because independent laboratory testing showed that it contained “material” and “significant” amounts of PFAS.[4] The plaintiff asserted both a price-premium injury (alleging he paid more for Simply “All Natural” juice products because he believed they were free of PFAS) and a benefit-of-the-bargain injury (claiming that the juice products were worth less than represented because they contained PFAS).[5]
Lurenz identified two generally acceptable methods of alleging a price-premium injury in fact in PFAS (or other contamination) consumer fraud cases within the Second Circuit.[6] A plaintiff must plead either that he or she personally purchased PFAS contaminated products, or that the contamination is sufficiently widespread to make it plausible that all of a particular product line (or all of the defendant’s products in general) are contaminated.[7] In Lurenz, the court found that the plaintiff had shown neither.[8]
The Lurenz plaintiff relied on three independent lab tests conducted after he filed his initial complaint, including some conducted after his first amended complaint was dismissed by the court.[9] “[B]eyond simply identifying the laboratory and the Product lines tested,” the plaintiff did not “aver any facts” regarding the testing procedure and failed to clarify when the substantial majority of the tested samples were collected or when they tested positive for PFAS.[10] He also failed to state whether the PFAS was detected in the packaging or in the juice itself, and whether the products were ones that he bought or the laboratory bought.[11] The court was also suspicious of the timing because the plaintiff claimed he purchased the products seven months before the laboratory performed the first test.[12]
The court also rejected the benefit of the bargain theory, finding that the plaintiff failed to establish standing because he did not plausibly allege how the presence of PFAS would render the juice to be worthless than what he bargained for.[13] The court noted that, although the plaintiff relied on general marketing phrases like “all natural” or “made simply,” he did not identify any basis to conclude that the juice he received was worth less than advertised.[14] The court found the plaintiff’s assertion that no reasonable consumer would have purchased the juice had he or she known about the presence of PFAS to be conclusory and unsupported by concrete facts.[15] Additionally, the plaintiff did not identify any cheaper, comparable PFAS-free products to support his allegation that he received a diminished value.[16]
The court further noted that the plaintiff’s “only factual allegation concerning the levels of PFAS detected” was that the tested products contained “more than 100 times the EPA’s recommended levels.”[17] However, the recommended EPA levels cited were actually lifetime health advisories for drinking water, which identified the level of PFAS in drinking water that, if consumed consistently over a lifetime, may lead to adverse health effects.[18] The court found this allegation too conclusory to create an injury in fact.[19] In sum, the plaintiff “purchased fruit juice for consumption, and he did, in fact, receive fruit juice that he consumed without harm.”[20]
Other jurisdictions have been far less willing to undertake a detailed factual analysis as in Lurenz when the issue of standing is intertwined with the merits of the plaintiff’s claim, instead deferring the resolution of any material factual dispute to the finder of fact. This is especially true within the Ninth Circuit, which recently held that district courts must deny Rule 12(b)(1) motions to dismiss for lack of standing premised on factual disputes that are “intertwined with an element of the merits of the plaintiff’s claim.”[21]
Nevertheless, the traditional FRCP 12(b)(6) motion to dismiss for failure to state a claim remains a viable option for defendants facing this sort of no-injury, no-deception claim for purported trace amounts of PFAS in consumer products. Indeed, the plausibility analysis under 12(b)(6) is quite similar to the injury-in-fact analysis conducted in Lurenz, and defendants are still free to challenge a plaintiff’s allegations as implausible on their face for any variety of reasons. For instance, a defendant might argue that the claim is implausible because the alleged testing procedure is inaccurate or otherwise insufficient. Furthermore, if plaintiffs fail to explain sufficiently why the amount of PFAS they have purportedly detected are harmful (and thus, worth less under a benefit of the bargain theory), courts are more likely to dismiss the claim as implausible.
In one recent Northern District of California case decided shortly after Bowen, a group of plaintiffs sued Procter & Gamble alleging they had suffered economic injuries from their purchases of tampon products because an independent laboratory commissioned by plaintiffs’ counsel detected organic fluorine in the products.[22] There, the plaintiffs argued that the presence of organic fluorine necessarily indicated the presence of PFAS in the products, and included several studies in support as exhibits to link organic fluorine to PFAS.[23] Nevertheless, these studies, the court noted, “call[ed] into question this very inference.”[24] One study stated that organic fluorine testing “may detect organofluorine chemicals that are not PFAS” and another stated that a different form of testing was “the necessary confirmation that the total fluorine measured originally c[ame] from the use of . . . PFAS.”[25]
The court found that although the plaintiffs had adequately established standing under Bowen by alleging that they “would not have purchased the products, or would not have purchased them on the same terms, if the true facts had been known[,]” the contradictory studies they used to support their complaint rendered their allegations “not plausible[.]”[26] Bounthon was thus dismissed under Rule 12(b)(6) on the grounds that the product testing did not plausibly support the plaintiffs’ conclusion that PFAS were present in the products, or that the alleged amount of PFAS was harmful.[27] The court later dismissed the plaintiffs’ third amended complaint with prejudice after they failed to remedy these issues.[28]
For defendants, the evolving landscape of PFAS consumer litigation presents notable opportunities for early dismissal based on lack of standing and plausibility. Plaintiffs who rely on generalized allegations, third party testing of products that he or she has not actually purchased, or studies that fail to conclusively link the presence of total organic fluorine to the presence of PFAS may have difficulty surviving a motion to dismiss under Rule 12(b)(1) or 12(b)(6). Defense strategy should focus on highlighting gaps between the specific products purchased and the purported contamination, challenging the sufficiency and reliability of the alleged testing, and exposing any disconnect between marketing representations and the injury alleged. In federal court, defendants are in a strong position to limit costly discovery and protracted litigation in PFAS consumer matters, so diligence at the motion to dismiss phase remains a powerful tool for defendants to resolve meritless suits before they advance.
FOOTNOTES
[1] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
[2] Id. at 560.
[3] Lurenz v. Coca-Cola Co., No. 22-cv-10941 (NSR), 2025 WL 2773188 at *1–2 (S.D.N.Y. Sept. 29, 2025).
[4] Id
[5] Id. at *4.
[6] Id.
[7] Id.
[8] Id. at 4–5.
[9] Id. at *5.
[10] Id
[11] Id
[12] Id
[13] Id. at *7.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id. at *8.
[20] Id.
[21] Bowen v. Energizer Holdings, Inc., 118 F.4th 1134 (9th Cir. 2024) (quoting Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014)).
[22] Bounthon v. Procter & Gamble Co., No. 23-CV-00765-AMO, 2024 WL 4495501, at *1 (N.D. Cal. Oct. 15, 2024).
[23] Id. at *8.
[24] Id.
[25] Id.
[26] Id. at *7–8.
[27] Id. at *7, 9.
[28] See Bounthon v. Procter & Gamble Co., No. 23-CV-00765-AMO, 2025 WL 1874890 (N.D. Cal. July 7, 2025); see also Dalewitz v. Procter & Gamble Co., No. 7:22-CV-07323 (NSR), 2023 WL 6215329, at *3 (S.D.N.Y. Sept. 22, 2023) (dismissing complaint under Rule 12(b)(6) when plaintiff’s testing identified organic fluorine in Oral-B toothbrush products but failed to link the presence of organic fluorine to the presence of PFAS).