A federal judge in California has rejected a specific screening test for per- and polyfluoroalkyl substances (PFAS) as insufficient alone to support a class action lawsuit involving allegations of PFAS in menstrual products. Noting that the total organic fluorine” (TOF) test, cited by the plaintiffs as the ?“gold standard” for PFAS testing, ?“may detect organofluorine chemicals that are not PFAS,” the judge determined that TOF testing alone is not sufficient to determine whether PFAS are present in products.

In this case, plaintiffs brought suit against the manufacturer claiming that advertising of the menstrual products as ?“pure cotton” was untrue given that TOF testing indicated the presence of organic fluorine. While granting the motion to dismiss, the judge has allowed the plaintiffs more time to substantiate their claim that PFAS specifically are present in the product and, if so, at harmful levels. The plaintiffs will now have to do so through a different and more focused testing program.

This should not be a surprising result. While TOF testing may, in fact, be the ?“gold standard” for screening for potential PFAS presence, as advocated by plaintiffs’ counsel, the test was not designed to be the sole determinative method for identifying PFAS in products. Though a ?“positive” TOF test often is due to PFAS (roughly 85-95% of the time), because organic fluorine may be present as a result of other non-PFAS chemicals, additional confirmatory testing is necessary to demonstrate that PFAS are actually in a product. Conversely, a ?“negative” TOF result provides strong confidence that the product/material is PFAS-free. For this reason, the TOF test – which is far cheaper than screening for the thousands of individual PFAS compounds – is an efficient mechanism for businesses to make an initial determination if a product or material should be further investigated for PFAS contamination.

Interestingly, the judge’s decision points to an implementation problem California and other states are grappling with as they begin regulating PFAS chemicals. Citing California Health and Safety Code § 108945, the judge notes that the Golden State defines ?“regulated PFAS” as either PFAS that are ?“intentionally added to a product and that have a functional or technical effect in the product,” or ?“the presence of PFAS in a product or product component at or above 100 parts per million, as measured in total organic fluorine.” Enforcement of the 100 ppm standard as written is complicated given that, at times, a hit for TOF does not mean with any certainty that PFAS are actually present in a product.

Dozens of states now have laws and regulations restricting PFAS in some or all types of products, as well as imposing reporting and other requirements. Six states have banned PFAS specifically in menstrual products, including California, Maine, Vermont, Rhode Island, Colorado, and Connecticut. Many of these jurisdictions are struggling to implement their PFAS product bans citing implementation costs, technological shortcomings, and legislative scoping issues.

In light of this court decision, many state regulators should assess the enforcement implications for alleged violators whose products indicate the presence of organic fluorine via TOF testing, and the role of additional PFAS-specific testing in such actions.

The case is Bounthon v. The Procter & Gamble Company (Case No. 23-cv-00765-AMO) (N.D.Ca. 2024).

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