No-Injury, No-Deception: Recent Cases Show Available Paths For Early Dismissal Of PFAS Consumer Misrepresentation Claims

• Published date: 30 December 2025
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Energy and Natural Resources, Chemicals, Product Liability & Safety, Personal Injury, Food and Drugs Law
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Mr Jeffrey J. Parker and Caelum Kelly

Personal injury and environmental plaintiffs have recovered billions of dollars over the last several decades since the dangers of per- and polyfluoroalkyl substances ("PFAS"), often referred to as "forever chemicals," became publicly known. Plaintiffs have continued to successfully sue over cancers and other medical issues allegedly related to exposure to PFAS-contamination in drinking water or firefighting foam.

After a 2022 Consumer Reports investigation reported that PFAS were found in a broad array of consumer food packing, there has been a notable uptick in plaintiffs claiming a different form of injury related to PFAS'purported economic losses stemming from alleged misrepresentations or nondisclosures about PFAS content in consumer products such as food, beverages, cosmetics, and personal care items. Notably, these plaintiffs do not allege that they have suffered any actual physical injury, instead relying entirely on alleged economic injuries arising from violations of state consumer protection laws. The plaintiffs in these lawsuits generally rely on testing conducted by independent laboratories to establish the presence of PFAS in products or product types, testing which often is unrelated to the actual specimen that the plaintiff purchased (i.e., plaintiffs have not tested the actual products they purchased).

As these cases move through federal courts, they are sometimes susceptible to dismissal at the motion to dismiss stage, both for failure to state a plausible claim and for lack of Article III standing. This article surveys the current trajectory of federal courts at the motion to dismiss stage on consumer misrepresentation PFAS cases and provides practical insights for companies and litigants navigating these evolving standards.

Some PFAS consumer fraud defendants have found success in achieving dismissals through early FRCP 12(b)(1) motions challenging whether a plaintiff has adequately alleged an injury in fact sufficient to establish Article III standing. In order to establish standing, a plaintiff must have suffered an "injury in fact" that is fairly traceable to the defendant's conduct and can be redressed by the court ruling in their favor.¹ A plaintiff has suffered an injury in fact when he or she can show a harm that is "concrete and particularized" (i.e., that they have personally and individually been affected) and "actual or imminent," not merely hypothetical.²

In the context of consumer misrepresentation cases, courts generally recognize purely economic injuries in fact under two theories, the "price-premium" theory (otherwise known as the "overpayment" theory) or the "benefit-of-the-bargain" theory. The price-premium theory focuses on whether the plaintiff paid more for a product due to misleading claims about its safety or qualities, while the benefit-of-the-bargain theory addresses whether the plaintiff received less than what was promised by those claims (such as diminished value or utility) even if the price was not inflated.

In one recent case, Judge Nelson Rom'n of the Southern District of New York rejected both theories, highlighting what a plaintiff must allege to survive a motion to dismiss.³ In Lurenz, a plaintiff sued Coca Cola alleging violations of New York's consumer protection laws on the basis that its Simply brand juice's "All Natural" labelling was misleading because independent laboratory testing showed that it contained "material" and "significant" amounts of PFAS.⁴ The plaintiff asserted both a price-premium injury (alleging he paid more for Simply "All Natural" juice products because he believed they were free of PFAS) and a benefit-of-the-bargain injury (claiming that the juice products were worth less than represented because they contained PFAS).⁵

Lurenz identified two generally acceptable methods of alleging a price-premium injury in fact in PFAS (or...