PFAS Basics:

• • PFAS = Per- and polyfluoroalkyl substances, a group of man-made chemicals used in consumer products since the 1940s
  • PFAS, known as ‘forever chemicals,’ persist in the environment and the human body because they don’t break down easily
  • PFAS exposure has been tied to serious health risks, including cancer, liver damage, fertility issues, and weakened immune function
  • Many PFAS have been phased out in the US, but they may still be present in some products

Core Claims:

• • Independent lab testing commissioned by Mamavation, a consumer advocacy group, found high levels of fluorine in various CVS Health brand bandages, indicating the presence of PFAS
  • Additional testing by Plaintiff’s lawyers confirmed PFAS in some of the same bandage products purchased by named Plaintiff Alisa Bourne
  • CVS promoted its bandages as sterile, antibacterial, and safe for wound care, but allegedly failed to disclose the presence of PFAS. According to the lawsuit, this omission misleads consumers and makes the products unsafe due to known PFAS health risks.
  • But CVS never disclosed that the bandages contain PFAS, which Plaintiff alleges makes them not safe as advertised due to the chemicals’ documented health risks

Why It Matters:

• • Consumers rely on bandage manufacturers and retailers like CVS to properly disclose product ingredients and safety information
  • Reasonable purchasers would not expect adhesive bandages and first aid products to contain PFAS chemicals, especially in light of their intended use
  • Toxic exposures are especially concerning for products used directly on the skin and near open wounds
  • Class members may have paid more for CVS bandages than they would have (or not purchased at all) if they knew PFAS was present
  • Case could set precedent for other PFAS consumer class actions and how courts view disclosure obligations around these chemicals

Class Certification:

• • To proceed as a class action, Plaintiff will need to file a motion and show she meets the requirements of Federal Rule of Civil Procedure 23, including:
    • Numerosity (class so large that individual joinder is impracticable)
    • Commonality (common questions of law or fact among class members)
    • Typicality (named plaintiff’s claims/defenses are typical of the class)
    • Adequacy (named plaintiff & counsel will fairly and adequately represent the class)
  • If certified, notice will go out to potential class members informing them of their rights to opt out or object
  • Most class actions settle once the class is certified and the defendant faces immense potential liability exposure

Possible Defenses:

• • Standing: Challenge whether Plaintiff or certain class members have standing to sue if they can’t show personal injury or harm from the bandages
  • Preemption: CVS may argue that federal laws, such as the Food, Drug, and Cosmetic Act, override (preempt) state law claims, shielding them from certain liability
  • Lack of Reliance/Causation: Contend class members didn’t rely on lack of PFAS disclosures or that nondisclosure didn’t cause their injuries
  • Statute of Limitations: Assert some claims are time-barred under the relevant statutes of limitation for those causes of action

Class vs. Individual Considerations:

• • Some aspects of the claims may lend themselves better to class treatment than others
  • Common issues presumably include whether PFAS was present in the bandages and if CVS had a duty to disclose that fact to consumers
  • But individual issues could arise related to how much each member paid, their specific reliance on CVS’s nondisclosures, and the nature of their individual injuries
  • The court must determine whether common issues among class members outweigh individual variations, a key factor in deciding whether to certify the class.

Elements of Key Claims:

• • Fraudulent Concealment:
    • (1) Defendant concealed or suppressed a material fact
    • (2) Defendant had duty to disclose the fact to plaintiff
    • (3) Defendant intentionally concealed the fact with intent to defraud
    • (4) Plaintiff was unaware of the fact and would have acted differently if known
    • (5) Plaintiff sustained damage as a result of the concealment
  • Implied Warranty of Merchantability:
    • (1) Defendant sold goods to plaintiff
    • (2) At the time of sale, the goods were not merchantable (fit for ordinary purpose)
    • (3) Plaintiff suffered injury and damages as a result of the unmerchantable goods

Damages Sought:

• • Financial compensation, including compensatory, statutory, and punitive damages
  • Restitution and disgorgement of CVS’s revenues from the allegedly unlawful practices
  • Injunctive relief to stop CVS from selling bandages that contain undisclosed PFAS
  • Legal costs and reasonable attorney fees as allowed by law
  • Any other remedies the court finds appropriate

Potential Damages Challenges:

• • Calculating monetary losses on low-cost consumer goods
    • What are actual damages if the bandages were used and served their intended purpose?
    • Is a full refund warranted or a lesser amount based on the alleged “premium” paid for PFAS-free?
  • Showing particular class members suffered concrete financial injury
  • Tying claimed damages to the specific product defect alleged
  • Overcoming lack of privity between class members and CVS for implied warranty claims

Consumer Tips:

• • Scrutinize labeling of health and beauty products for complete disclosures
  • Look for “PFAS-free” claims but be aware they aren’t always a guarantee
  • Check for class action settlements you may be eligible to claim as a consumer
  • Voice concerns to companies and legislators about PFAS and other chemicals of concern

Corporate Considerations:

• • Proactively evaluate potential presence of PFAS in product lines and packaging
  • Consider voluntary disclosures or reformulation strategies where appropriate
  • Align labeling/marketing with ingredients and known risks to minimize false advertising exposure
  • Monitor emerging regulations and liability trends around PFAS

Questions:

1. What does PFAS stand for?
   1. Polyfluoroalkyl substances
   2. Perfluoroalkyl substances
   3. Perfluoroalkyl sulfonic acids
   4. Perfluorooctanoic acid
2. What court was the CVS class action filed in?
   1. CA Superior Court
   2. US District Court for the Northern District of CA
   3. US District Court for the Central District of CA
   4. CA Court of Appeals
3. Which of the following is NOT alleged in the complaint against CVS?
   1. CVS bandages contain undisclosed PFAS chemicals
   2. CVS violated California false advertising laws
   3. The presence of PFAS made the bandages completely ineffective
   4. The lawsuit aims to represent a nationwide consumer class
4. What agency considers PFAS chemicals a “major threat to public health”?
   1. EPA
   2. FDA
   3. Agency for Toxic Substances and Disease Registry (ATSDR)
   4. Consumer Product Safety Commission (CPSC)
5. Which of the following relief is NOT sought in the CVS complaint?
   1. Monetary damages
   2. Medical monitoring for class members exposed to PFAS
   3. Restitution and disgorgement of profits
   4. Injunctive relief to prohibit sales of PFAS-containing bandages

Answers:

1. B. PFAS refers to per- and polyfluoroalkyl substances, a group of synthetic chemicals recognized for their long-lasting presence in the environment.
2. B. The class action complaint was filed in the United States District Court for the Northern District of California, a federal trial court.
3. C. While the lawsuit alleges the bandages are not as safe or healthy as marketed due to PFAS, it does not claim they were completely ineffective at covering wounds.
4. A. The EPA has deemed PFAS an urgent public health threat and is in the process of developing new regulations around the chemicals.
5. B. The complaint does not appear to seek court-ordered medical monitoring as a remedy, though that has been sought in some other PFAS exposure lawsuits.