BROOKLYN, N.Y. (Legal Newsline) - A class action lawsuit over the alleged presence of chemicals known as PFAS in Kerrygold butter products will get to proceed.
New York federal judge Frederic Block on April 23 only tossed a claim for a public injunction from the case while allowing plaintiff Carolyn Winans to pursue claims under the New York General Business Law and for unjust enrichment and negligence per se.
Consumer PFAS class actions have had mixed results at the dismissal stage, but lawyers at The Sultzer Law Group and Milberg Coleman scored a positive ruling from Block.
PFAS are known as "forever chemicals" because the human body can't rid itself of them. Some research, funded by a DuPont settlement, suggests links to six diseases, including kidney and testicular cancers, but some observers say not enough studying has been done to definitively say how they affect the body.
Litigation has sprung up in recent years, including private lawyers aligning themselves with government officials to represent them on contingency fees. Many of the cases are in a multidistrict litigation proceeding in South Carolina federal court, while consumer class actions are also being filed around the country.
The one against Ornua Foods, which makes Kerrygold butter, alleged it was misleading to call butter sticks "pure" because the packaging contained PFAS. In fact, Ornua issued a recall after New York banned PFAS in food packaging in early 2023.
Winans claims that the defendant used the false labeling of the butter product to drive sales and increase profits despite knowing it contains synthetic chemicals which are harmful to humans and the environment.
Ornua argued Winans failed to show the presence of PFAS matters to a reasonable consumer.
"Ornua's argument is misplaced for two reasons," Block wrote. "First, materiality is not a separate element; rather, to state a GBL claim, the plaintiff must plead the existence of a material misrepresentation that is likely to mislead a reasonable consumer, as Winans has.
"Second, even if materiality were a separate, required element, the Court cannot conclude, as a matter of law, that the presence of PFAS in butter is immaterial to a reasonable consumer. To the contrary, the Court presumes that the presence of PFAS would be concerning to many consumers."
The ruling keeps alive the possibility of a medical monitoring program that would drive Ornua's costs and attorneys fees up.