OAKLAND, Calif. (Legal Newsline) – Burger King has hit back against a class action lawsuit over the presence of chemicals known as PFAS, arguing federal law allows it to use them in its packaging for Whoppers and French fries.
The case, filed in April in Oakland, Calif., federal court, is part of a small trend of cases against restaurants over PFAS in packaging. Recently, CAVA argued the plaintiffs couldn’t allege anyone was actually harmed by PFAS used by the Mediterranean food chain.
PFAS are found in firefighting foam and consumer products like non-stick cookware and have made their way into the bloodstreams of virtually every American.
Lawsuits blame the chemicals for a variety of health problems, some of which were linked by a health study that was part of a settlement with DuPont. But others say the science on how PFAS affect the human body is incomplete.
Meanwhile, as the government still requires PFAS in its firefighting foam on military bases, lawyers pursue litigation like an Ohio class action that alleges no illnesses. Most PFAS cases are sent to a federal multidistrict litigation proceeding in South Carolina federal court.
Burger King says the Oakland class action is preempted by the Federal Food, Drug, and Cosmetic Act.
“Burger King’s food packaging uses authorized PFAS and, per federal law, the food products are accordingly not adulterated, not unsafe, and not illegal for sale,” a July 25 motion to dismiss says.
“California law likewise still permits the use of PFAS and has enacted a phasing-out program that does not limit the use of PFAS in food packaging until Jan. 1, 2023, and, even then, will permit the use of PFAS below a specified level.”
The suit says PFAS found in Burger King’s packaging violate the company’s promise on its website that products are “safe” and “sustainable.” Research has indicated 249.7 parts per million of total organic fluorine, the suit says.
“Thus, based on Defendant’s representations, a reasonable consumer would expect that the product can be safely purchased and consumed as marketed and sold,” the suit says. “However, the product is not safe, posing a significant health risk to unsuspecting consumers.
“Nor is the product sustainable.”
Burger King says the complaint fails to show the plaintiff relied on Burger King’s “sustainable” claims when making his purchase, while also refuting all other claims made by plaintiff lawyers at Bursor & Fisher.
“In particular, Plaintiff’s general allegation leaves Burger King guessing as to which statements Plaintiff actually viewed, if any,” the motion says.
“Notably, while generally alleging he ‘reviewed the labeling, packaging and marketing materials of his products,’ he fails to allege whether he actually reviewed (and is basing his claim on) representations on Defendant’s website, commercial or parent company’s investor report and executive statements.”