Nike is the latest company to be named in a lawsuit over “forever chemicals.” According to the complaint that it filed in a California state court on Monday, Ecological Alliance, LLC claims that the Swoosh has failed to warn citizens in California that its offerings – namely, Jordan duffle bags – contain Perfluorooctanoic Acid (“PFOA”), which is “part of a group of synthetic, man-made chemicals known to be harmful to humans and the environment,” thereby, running afoul of a California state health and safety law.
In the newly filed (and very brief) complaint, which it has lodged “in the public interest of the People of the State of California,” Ecological Alliance alleges that by offering for sale products that contain PFOA and thus, “exposing [consumers] to PFOA through usage of those products,” Nike is in violation of California’s Safe Drinking Water and Toxic Enforcement Act of 1986/Proposition 65. While the California state law does not necessarily ban or restrict the sale of products/packaging containing the 900 listed chemicals (there are exceptions), it requires businesses to provide a specific warning to California residents about “significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm.”
Nike and Dick’s Sporting Goods, which is also named as a defendant in the lawsuit for presumably offering up the allegedly forever chemicals-containing Nike wares, “know and intend that their products expose consumers in the State of California to PFOA,” per Ecological Alliance, and yet, allegedly failed to offer up such goods with the necessarily warning label.
Against this background, the plaintiff – a non-profit environmental group that has previously filed suits against Kroger, Burlington Coat Factory, Target, and Whole Foods, among others – sets out a single claim under Proposition 65 against Nike and Dick’s. It is seeking preliminary and permanent injunctive relief that orders the two defendants from “manufacturing, distributing, offering for sale, selling, and/or serving in the State of California Products that contain the Listed Chemical [PFOA] without first providing a ‘clear and reasonable warning’ under Proposition 65,” compels them to “provide the warning required under Proposition 65 regarding the products.”
Ecological Alliance is also seeking civil penalties against the defendants “in such amount as the court deems appropriate.”
THE BIGGER PICTURE: Ecological Alliance’s PFOA-centric lawsuit is the latest is a swiftly growing number of PFAS-centric cases targeting defendants in retail and beyond, marking an extension beyond the original pool of defendants, namely, entities that were accused of directly contaminating the environment via PFAS chemicals. (At least 1,235 PFAS lawsuits were filed in 2021, according to Bloomberg data.)
The “catalyst” for such swiftly growing litigation is “the rapidly developing patchwork of proposed municipal, state, and federal regulations seeking to find and hold accountable PFAS users,” Eversheds attorneys stated in a recent note. Not only are “state attorneys general taking an increasingly active stance against PFAS. the plaintiffs’ bar is advancing new types of PFAS suits, including state-wide class actions and greenwashing suits that target a wide variety of PFAS users.” (An influx in reports being published that reveal the results of tests for PFAS chemicals in products also frequently give rise to litigation against the makers of such products.)
Reflecting on such new cases, they say that forever chemicals “present fertile ground for new, creative lawsuits, including greenwashing suits,” in which plaintiffs claim companies have “mislead consumers by representing that its business or product is more environmentally friendly, socially impactful, sustainable, or healthy than it actually is” due to the presence of PFAS chemicals. (Cases waged against outdoor apparel and equipment retailer REI and Clorox-owned Burt’s Bees are among those that represent the intersection of PFAS and greenwashing.)
“Not only can greenwashing expose a company to consumer class actions, but it could also result in an FTC enforcement action,” Eversheds asserts, noting that the damage claims in PFAS cases “often amount to hundreds of millions, if not billions, of dollars.”
Generally falling into three categories, namely, water and property contamination, insurance coverage, and consumer litigation, PFAS cases have resulted in “varying success in the courts,” according to Vorys’ Nina Webb-Lawton. “A number of these cases have been dismissed, but not all defendants have been so lucky,” she notes. For example, in August 2022, a federal court in California denied the defendant’s motion to dismiss in Dawood v. Gamer Advantage LLC, that since-settled case centered on allegations that the defendants’ anti-fog eyewear spray contained PFAS.
Regardless of whether new product PFAS cases will be successful for plaintiffs, Webb-Lawton says that “the monetary and reputational costs involved in defending such cases cannot be ignored by manufacturers and retailers.”
A rep for Nike did not respond to a request for comment.
The case is Ecological Alliance, LLC v. Nike, Inc., et al., 23-STCV-10978 (Cal. Sup.)
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