McDonald’s Corporation argues that a “baseless accusation” that its packaging contains toxic chemicals should be dismissed because the plaintiffs do not assert any injuries and the “grease-resistance substances” are approved by the Food and Drug Administration (FDA).
McDonald’s filed a motion to dismiss and an accompanying brief in support of its motion on June 1 through attorney Trenton Norris of Arnold & Porter Kaye Scholer LLP in San Francisco.
The brief states that the class action boils down to two recent articles in consumer advocacy publications that ‘indicate’ that the packaging of four McDonald’s menu items may contain unspecified chemical compounds in a category of thousands of compounds used for grease-resistance, some of which are believed to be toxic and some of which are known to be safe.”
“Plaintiff’s have not done any testing of their own, much less on their own purchases,” Norris wrote. “Even the advocacy publications did not test the food itself. And the results they report for the packaging are entirely consistent with the presence of safe, FDA-approved grease-resistance substances - which McDonald’s discloses it uses.”
McDonald’s argues that the plaintiffs fail to claim they suffered actual injuries. Instead, they allege economic damages. They claim that based on the presence of polyfluoroalkyl substances (PFAS), “the menu items they have already enjoyed were worth less than they paid, or maybe worth nothing.”
McDonald’s argues that the plaintiffs fail to confirm the type of PFAS in the packaging and fail to prove any PFAS substances are present in the food. It adds that PFOA and PFOS are two types of PFAS that are regulated and were phased out about a decade ago, while other PFAS substances are FDA-approved for use in food and contact applications.
“The one specific PFAS substance cited in the complaint as having been used in McDonald’s packaging in the past was FDA-approved, and the PFAS substances presently used in McDonald’s packaging are also specifically approved,” Norris wrote.
“Therefore, regardless of whether McDonald’s misrepresented or disclosed the presence of PFAS in its packing - which the complaint alleges inconsistently - plaintiffs fail to allege facts on which to base their core claim that McDonald’s packaging contains any harmful PFAS compound,” he added.
The defendant further argues that the U.S. District Court for the Southern District of Illinois is not the proper venue for the case. If dismissal is denied, McDonald’s seeks to transfer the case to the Northern District of Illinois where two similar cases are also pending.
Attorney Steffan Keeton of The Keeton Firm LLC in Pittsburgh filed the amended class action complaint on April 20 on behalf of plaintiffs Larry Clark, Joseph Hauser, Lydia Johnson and Linda Cavazos. The plaintiffs allege they suffered economic damages as a result of the presence of PFAS.
“The products that plaintiffs and class members purchased are either worthless or worth less than the purchase price because defendant failed to disclose that they contain PFAS which are dangerous to the health of the consumer and to the environment,” the suit states.
According to the first amended complaint, the plaintiffs claim they purchased food products that are unfit for their intended use because they contain PFAS.
“PFAS are known as ‘forever chemicals’ because the carbon-fluorine bonds in PFAS are extremely strong and thus are not appreciably degraded under environmental conditions,” the complaint alleges. “The continued use of PFAS is, by their nature, unsustainable, because it will necessarily lead to a greater concentration of PFAS in the environment. In some case, PFAS will survive over 1,000 years.”
As a result, the suit states that low levels can also be harmful.
The plaintiffs claim exposure to PFAS is especially harmful to children and pregnant women. The substances are allegedly capable of crossing the placenta and transferring to unborn infants.
“Women exposed to PFAS during pregnancy have higher risks of gestational diabetes and pre-eclampsia, and their babies are more likely to undergo abnormal growth in utero, leading to low birth weight and later face an increased risk of childhood obesity and infections,” the suit states.
Specifically, the plaintiffs allege PFAS used in food packaging may migrate into fast food.
“The use of PFAS in its products stands in stark contrast to McDonald’s brand identity which espouses food safety,” the suit states. “In almost every medium, McDonald’s Corporation tells consumers, investors, and the general public that the products are safe.”
The plaintiffs allege McDonald’s denied that PFAS were used in the products until 2021.
“This failure to warn injured reasonable consumers, including plaintiffs, who reasonably relied upon defendant’s misleading representations that its products were safe,” the suit states. “Had plaintiffs and the putative class members know that McDonald’s products contained PFAS, they would not have purchased the products and/or would have paid less for them.”
The plaintiffs claim that as a company valued in excess of $200 billion, McDonald’s has the resources to provide products without the use of PFAS.
“This ‘profits over people’ approach allows McDonald’s Corporation to save pennies per unit sold, and instead pass these ‘costs’ at a far greater rate onto generations of consumers that must live with the consequences of McDonald’s willful inclusion and concealment of dangerous PFAS in McDonald’s products,” the suit states.
U.S. District Court for the Southern District of Illinois case number 3:22-cv-628