Standing on Slippery Ground: PFAS Products, Article III Standing, and the Case for Legislative Action

Authors

Bren J. Chaisson, Western New England University School of Law

Document Type

Article

Publication Date

2025

Abstract

Can implementing a new statute fix the standing obstacle that many cases involving per- and polyfluoroalkyl substances (PFAS) face? PFAS are a classification of thousands of common chemicals that cause a variety of adverse health effects. Hardwick v. 3M Co. highlighted the issue plaintiffs have with establishing standing when bringing forth a case. The plaintiff’s alleged injury was the presence of five specific PFAS in his bloodwork. The 6 th Circuit Court of Appeals held that the plaintiff, a firefighter who often used PFAS-contaminated foam, was unable to demonstrate that the defendants, several PFAS manufacturers, were responsible for the PFAS in his blood. In other cases, individual plaintiffs have brought claims relating to specific products containing PFAS. These cases have had varying degrees of success in establishing Article III standing. The Court for the Eastern District of New York in Winans v. Ornua Foods N. Am. Inc. found standing under the price premium theory when a plaintiff alleged PFAS migrated from the packaging into the butter they purchased. Meanwhile, the Southern District of New York in Hicks v. L’Oréal U.S.A., Inc., rejected the plaintiff’s price premium claim, finding no injury-in-fact because the plaintiffs could not prove the specific individual mascara they purchased contained PFAS.

As the public becomes more aware of the harm PFAS causes, more individuals are bringing suits for PFAS-contaminated products. This Note will examine various strategies for bringing PFAS contamination claims and evaluate each strategy’s effectiveness in establishing standing. Further, this Note will argue that a statute is needed to allow plaintiffs to have consistent standing for these cases. This statute would establish a limit on the amount of PFAS permissible in a product. A violation of this statute would provide a sufficient way for a plaintiff to show standing for their claim. Additionally, this statute would articulate a clear means for product testing to show a particular product is in violation of the statute. Finally, this statute would include a straightforward framework for a court to provide relief. The fact that courts cannot agree, even within the same district, highlights the need for such a statute.