Can a company really market a product as a “superfood” if it contains trace amounts of PFAS? That was the question put before a federal court in New York, accusing wellness brand KOS, Inc. of misleading consumers with plant-based protein powders marketed as “nature-powered,” “organic,” and health-forward. But in a ruling that highlights the growing difficulty of transforming PFAS-centric headlines into successful consumer lawsuits, a Southern District of New York judge dismissed the case – not due to a lack of concern over PFAS, but because the plaintiffs could not prove they were harmed.
The Background in Brief: Plaintiffs Catherine Barnes and Elizabeth Menkowitz filed suit against KOS in November 2023, alleging that they purchased KOS protein powder only to later learn from third-party lab tests that the product allegedly contained “dangerously high” levels of PFAS – or “forever chemicals.” Claiming deceptive marketing and violations of consumer protection laws, Barnes and Menkowitz sought damages and injunctive relief, asserting that they would not have purchased the products – or would have paid less – had they known about the alleged PFAS contamination.
In a nutshell: Barnes and Menkowitz alleged that no reasonable consumer would expect a product touted as healthy to contain any PFAS, no matter how small the amount.
A Case Over “Clean” Protein
In a case that ultimately hinged on whether Barnes and Menkowitz could demonstrate a tangible injury or economic loss tied directly to the alleged PFAS content, SDNY Judge Nelson S. Román sided with KOS in a decision on July 14, shutting down the plaintiffs’ two main theories of harm …
> The Price-Premium Argument: Barnes and Menkowitz claimed they overpaid for KOS powders because they were misled into believing the products were PFAS-free. However, the court found their case speculative. Menkowitz claimed that a lab test on her product revealed PFOA levels of 0.369 ng/g, but she provided no details about when or how the test was conducted, who performed it, or whether it was representative of all KOS products. Without that specificity, the court suggested the test result was as likely to be a false positive or an isolated contamination event as it was evidence of systemic mislabeling.
> The “Benefit of the Bargain” Argument: The plaintiffs also claimed that the products were “worth less than what they bargained for” due to the presence of PFAS. Judge Román was unconvinced. “Plaintiffs paid for protein powder and received protein powder,” he noted, pointing out that Menkowitz consumed hers “without incident,” while Barnes didn’t consume hers at all. Like other recent cases (In re Beech-Nut Baby Food Litigation being the prime example), the court rejected the notion that trace contaminants alone render a product valueless or unfit for use.
Judge Román dismissed the case without prejudice, giving the plaintiffs until August 29 to file a second amended complaint. That might require more robust testing data, concrete allegations of misbranding, or even expert testimony tying PFAS levels to a meaningful loss in value.
PFAS Litigation Hits a Wall
The latest round of the lawsuit is a meaningful one in light of growing public concern – and rising litigation – over PFS, which have been linked to a range of potential health risks, and given that it mirrors a broader trend: courts are demanding a tight, evidence-backed link between product contamination and consumer harm. Simply pointing to scary-sounding lab results is not enough; plaintiffs must show that their specific purchase was contaminated, that the contamination contradicts specific marketing claims and crucially, that it diminished the product’s actual value.
In an industry built on “clean” branding, this presents a serious hurdle. PFAS contamination has become an omnipresent concern – from cosmetics and sportswear to cookware and apparently, protein powders – but proving that a trace amount of PFAS in a single protein powder is actionable remains a tall order.
THE TAKEAWAY: The KOS decision is not just a win for the protein powder company; it may be a signal for the broader “wellness “industry. Brands touting “organic” or “superfood” labels will continue to face scrutiny, but plaintiffs can no longer assume that contamination claims, however alarming, will survive the standing stage without meticulous, product-specific evidence.
The case is Barnes v. KOS, Inc., 7:23-cv-10104 (SDNY).
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