While the restaurant industry has largely sidestepped the controversy raging in courthouses, state houses, and regulators’ offices over PFAS, six suits recently filed against quick-service restaurants suggests that the industry might not remain above the fray for much longer. Per- and polyfluoroalkyl substances (known as “PFAS”) is a catch-all term used to describe thousands of different “forever chemicals” that break down incredibly slowly over time and are found in any number of consumer products and especially in products’ packaging. Plaintiffs and consumer advocates have argued that these chemicals can lead to a number of negative health effects for humans and animals alike, including an increased risk of cancer and an impact on the body’s immune system.
As news coverage of PFAS has increased in recent years, so too has interest from legislators, regulators, and plaintiffs’ attorneys. Initially, suits intermittently filed by plaintiffs over PFAS tended to focus on cosmetics and similar packaged, consumer goods. And, while plaintiffs in those cases enjoyed a fair amount of early success at the motion to dismiss stage, the restaurant industry managed to avoid widespread litigation. However, recent suits against Burger King, McDonald’s, and Cava alleging the quick-service giants deceptively failed to notify customers about PFAS found in their products’ packaging suggest that PFAS litigation is quickly headed for the restaurant industry and is likely here to stay.
In April, the plaintiff in Hussain v. Burger King Corp. filed a putative class action in California federal court alleging that Burger King deceives its customers by failing to label its products as containing PFAS. According to the complaint, Burger King’s product packaging uses PFAS as a “barrier to keep grease from escaping” and “from leaking into people’s hands.” Not only did the plaintiff allege that Burger King failed to label its products in a way that notified him of the presence of PFAS, but that the chain’s use of PFAS betrayed its marketing focus on safety and sustainability.
In part, the plaintiff pointed to Burger King’s marketing slogans like “Have It Your Way, the Real way[:] All the flavors you crave without the ingredients you don’t” and “No secrets in our sauce,” which he claims are incompatible with the use of PFAS in the restaurant’s packaging. Seeking to represent a nationwide class of Burger King consumers, the complaint seeks, among other things, compensatory, statutory, and punitive damages, injunctive relief, and the plaintiff’s attorneys’ fees for bringing the action. Three days after the Hussain suit was filed, Burger King was hit with a similar suit in Florida federal court—Rhonda Cooper v. Burger King Corp. in the Southern District of Florida.
Burger King isn’t alone in being targeted with newly-filed PFAS litigation. The Hussain and Cooper complaints followed three different putative class actions filed in Illinois federal courts against McDonald’s raising similar allegations. The three suits, Clark v. McDonald’s Corp., Collora v. McDonald’s Corp., and McDowell v. McDonald’s Corp. each allege that McDonald’s deceives consumers about the presence of the allegedly harmful PFAS in its food packaging. Like the Burger King suits, the plaintiffs in these cases pointed to various McDonald’s marketing slogans, like “from farm to fork” and “safe” and “sustainable” as being incompatible with the restaurant’s use of PFAS in its packaging. In addition, in the McDowell complaint, the plaintiff called out the presence of the Forest Stewardship Counsel’s (“FSC”) logo on the product packaging, alleging that the logo “show[s] sustainable credentials to your buyers” (deceptively, according to the McDowell plaintiff). Like in Hussain, the McDonald’s plaintiffs seek a number of remedies, including compensatory, statutory, and punitive damages, injunctive relief, and attorneys’ fees.
Even more recently, the Cava Group was sued in California federal court in late April in Hamman v. Cava Group Inc. There, the complaint targeted certain Cava grain and salad bowls as unfit for human consumption because of “heightened levels” of fluorine, which can allegedly indicate the presence of PFAS. It further states that Cava represents its products as “responsibly sourced, compostable, functional, and now PFAS free,” when this is not true.
To be sure, the restaurant industry is far from alone in being targeted for PFAS consumer product litigation. For instance, two consumers recently targeted Cover Girl and L’Oreal in putative class action suits filed in New York and New Jersey federal courts, alleging that the cosmetics companies’ products deceptively contained PFAS despite being marketed as “sustainable” and “clean.” Prior to that, another consumer sued Target and NatureStar in California federal court, alleging that compostable NatureStar products sold by the retailer are not 100% compostable given the presence of PFAS in the products. Packaged food manufacturers have also been targeted; consumers recently hit ConAgra with two suits in Illinois federal courts alleging that its Orville Redenbacher’s and BOOMCHICKAPOP popcorn products contained PFAS. And PFAS suits, in some cases have been costly to resolve for companies. For instance, last year, three manufacturers settled a suit for $11.9 million over the presence of PFAS in a Michigan community’s groundwater. Plaintiffs had alleged that the defendants improperly disposed of PFAS used in their manufacturing processes, which subsequently leached into the community’s water system.
While PFAS litigation may be all the rage, it remains to be seen whether the suits against Burger King, McDonald’s, and Cava succeed where similar suits have failed in the past. For instance, in 2020, a single plaintiff filed a number of actions against quick-service restaurants, alleging that their polystyrene containers contained a chemical that was a carcinogen and negatively affected reproductive health. In dismissing one of the suits, the Southern District of Florida court in Echevarria v. Taco Bell of America, LLC, held that, among other issues, the plaintiff failed to allege how the containers actually made her ill.
Time will tell whether PFAS plaintiffs fare any better in their suits against the restaurant and quick-service industries. However, until then, these companies will likely continue to be targeted for PFAS allegedly in their product packaging, especially when plaintiffs and their counsel can point to allegedly contradictory marketing statements touting the restaurant’s sustainability or commitment to food safety.
Benjamin Abel is an associate at McGuireWoods LLP in Charlottesville, Virginia. He is a seasoned litigator with extensive experience representing clients in federal and state courtrooms. He focuses his practice in representing clients in products liability and class actions, with a particular emphasis on food and beverage labeling claims.
R. Trent Taylor is a partner at McGuireWoods LLP in Richmond, Virginia. He focuses on defending complex class actions with an emphasis on product class actions, public and private nuisance litigation, environmental contamination suits, and food, cosmetic, and supplement labeling (including CBD) and safety issues.
S. Virginia Bondurant Price is a partner at McGuireWoods LLP in Richmond, Virginia. She is a trial and appellate lawyer handling a broad array of product liability, consumer class action, and commercial litigation matters across the country.
