PFAS Litigation Update: Edgewell Sued for Failing to Warn of PFOA in its Menstrual Liners

Specifically, the plaintiff claims that Edgewell failed to warn California consumers of the presence of PFOA in its product, in violation of California’s Prop 65. It also alleges that because the liners are in direct contact with a woman’s vaginal area, the PFOAs can enter the bloodstream. The plaintiff seeks an injunction compelling Edgewell to provide the warnings they claim are required under Prop 65, as well as civil penalties against Edgewell for violations of Prop 65.

Proposition 65 and Other Laws at Play

Prop 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires companies to provide warnings to California citizens concerning significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm. A list of these chemicals is published by the State of California and is updated at least once a year since its first publication in 1987. PFOA was added to the list in 2017 as a reproductive toxin. In 2022, the chemical was also classified as a carcinogen.

Under Prop 65, businesses can elect to include on their products either a long- or short-form warning alerting consumers of the potential exposure to one or more of the listed chemicals. The short-form warning, which has been a favored choice among businesses since its introduction into the law in 2018, does not require identification of a particular chemical, only the risk associated with it. The long-form warning requires both, in addition to specific language the short-form warning need not include. To comply with either type of warning, the product or its packaging must display a yellow triangle with an exclamation point inside and the word “WARNING” in bold font, as well as in-box instructions directing consumers to the Prop 65 website. Having either the long- or short-form warning provides a safe harbor against claims under Prop 65, though not necessarily other causes of action arising from the presence of PFAS (or another chemical) in a product. The complaint here alleges that Edgewell failed to include any warning whatsoever on its Carefree panty liners.

Notably, this suit was filed the same day that California Governor Gavin Newsom signed Assembly Bill 2515 into law, banning the sale of menstrual products that contain “intentionally added PFAS” as of January 1, 2025, and all other PFAS above a certain limit (yet to be determined) as of January 1, 2027. The law requires the Department of Toxic Substances Control (DTSC) to publish on its website by January 1, 2027, a list of accepted methods for testing for the presence of regulated PFAS in the products and appropriate third-party accreditations for testing laboratories. The law also mandates a manufacturer to register menstrual products with the DTSC and provide a statement of compliance certifying that it complies with the law by July 1, 2029.

Each new law, such as Bill 2515, emboldens plaintiffs to file lawsuits like the one against Edgewell. To avoid the risk of litigation, product manufacturers and sellers should remain vigilant about PFAS content in their products, especially those that are identified on the Prop 65 list, and what compliance with the law requires.

The ArentFox Schiff Consumer Products group is available to answer any questions you may have. Please feel free to reach out to the authors or any attorney on our Consumer Products team.