This spring, two separate lawsuits were filed against McDonald’s and one was filed against Burger King alleging similar causes of action and seeking similar remedies, part of a growing trend of consumer product cases involving polyfluoroalkyl substances (PFAS).
PFAS, often known as “forever chemicals,” are commonly used in food packaging in an effort to prevent packaging leakage. On October 18, 2021, EPA Administrator Michael S. Regan announced a strategic roadmap aimed at significantly reducing the use of the chemicals, including a comprehensive strategy to address the problem.
“While the three cases were filed separately, they all rely in part on third-party testing reports, such as a Consumer Report that supposedly found elevated levels of total organic fluorine in food packaging, which some contend is a measure of PFAS,” says Matt Walker, an associate at Lathrop GPM Law Firm in Chicago.
The federal government’s actions toward PFAS in food packaging has largely relied on voluntary phase outs of certain compounds, but several states have moved to ban the sale of PFAS in food packaging.
The details of the cases are as follows. In April, plaintiff Azman Hussein sued Burger King in the U.S. District Court for the Northern District of California. The class action lawsuit alleges that ,while Burger King markets its food as using “real ingredients” with “no secrets,” and sustainable packaging, the company was allegedly exposing consumers to harm by using PFAS-coated food packaging.
“The complaint details several examples of Burger King’s statements about the safety of its food,” Walker says. “The proposed class includes any person in the United States, or the California subclass, who purchased Burger King products. Hussein seeks medical monitoring for the proposed class, in addition to monetary damages and injunctive relief.”
In a lawsuit filed March 28 in the U.S. District Court for the Southern District of Illinois, plaintiff Larry Clark alleged that McDonald’s Corporation also was using PFAS product packaging, contrary to its food-safety pledge, resulting in what the lawsuit says is fraud and deceptive business practices. “The plaintiff alleges he purchased products from various McDonald’s restaurants in several central Illinois counties, but does not identify any specific franchisees,” Walker says.
On March 31, plaintiff Ken McDowell brought a class action against McDonald’s Corporation in the U.S. District Court for the Northern District of Illinois, making similar allegations that the products were fraudulently and misleadingly marketed as safe for consumers and environmentally friendly, in violation of federal and state consumer protection laws. “Among monetary damages and injunctive relief, McDowell seeks medical monitoring on behalf of a national class and California subclass,” Walker adds.
While the complaints make various allegations of potential human health effects and refer to various state and federal regulatory actions to address PFAS, these lawsuits do not bring traditional tort claims for personal injury says Walker. Instead, they bring claims arising from the misrepresentation of their products as safe based on violations of consumer protection and false advertising laws. “Certainly, a judgment in favor of plaintiffs would be detrimental for the industry, but even in the absence of a verdict, the combination of media attention, increasing regulatory pressure, and consumer activism means that the food industry will likely be the target of continuing litigation,” Walker adds.