Chemophobia Class Actions: Who Is Really 'Injured'?

Jason Levin
Law360
July 6, 2012

Law360, New York (July 06, 2012, 12:41 PM ET) -- Every week, there is some report, story or blog about a newly suspected dangerous/toxic/hazardous chemical in the products we purchase, use and consume. In the past, concerned consumers largely voted with their feet, refusing to buy such products. Now they sue.

The food we eat, the cosmetics we apply, the toys our children use: All have been recently targeted in class actions arguing that consumers should be able to avoid unexpected, unknown or uncertain “risks” from chemicals.

Citing consumer protection statutes, the plaintiffs allege an economic injury, contending that they wouldn’t have bought the product — or wouldn’t have paid a premium for the product — had the risks of chemical exposure been made known to them. These chemophobia class actions are appearing in the courts with increasing regularity, even though they face substantial hurdles.

The most significant obstacle to the chemophobia class action has been the need to prove a cognizable injury. The legal issue focuses on Article III, Section 2 of the United States Constitution and the state consumer protection statutes that import Article III principles as an element of a claim.

Article III limits federal court jurisdiction to “cases and controversies” and is only satisfied where the plaintiff can clearly demonstrate an “injury in fact.” The alleged injury must be concrete and particularized, not abstract, conjectural or hypothetical.

Do the economic injuries alleged in chemophobia cases satisfy Article III? There is no consistent answer — the federal district courts have taken various approaches and reached varying conclusions. Their decisions, however, do offer some lessons for prosecuting and defending future cases.

As a start, proving an Article III injury will be easiest in cases where the product is indisputably capable of causing a serious personal injury. Take Aqua Dots for example.[1] Aqua Dots was a children's toy consisting of little beads that could be fused together to create designs. But when the beads were swallowed, a chemical in the beads metabolized into gamma-hydroxybutyric acid (GHB), the so-called date-rape drug.

Many children swallowed the beads and became sick, with some falling into comas. Given that potential, the U.S. Court of Appeals for the Seventh Circuit held that the parents of children who had not swallowed the beads had still incurred a cognizable economic injury to the extent that “they paid more for the toys than they would have, had they known of the risks the beads posed to children.”[2]

Similar is the decision concerning Mattel Inc. toys that contained lead or lead paint and had been subject to a recall ordered by the U.S. Consumer Product Safety Commission.[3] The plaintiffs had not alleged that their children had actually ingested lead from the toys.

But the district court nonetheless found that plaintiffs had pleaded an injury in the form of needed medical monitoring. “[I]n the context of children who cannot reasonably be expected to state reliably whether they ingested the lead paint, there is no obvious way to know whether the exposure was actual or only ‘potential’ without at least the initial testing that Plaintiffs seek.”[4]

But even where the purchased product contains a neurotoxin like lead, it’s not certain that the plaintiffs can establish an Article III injury. In one recent case, the manufacturers of juice and packaged fruit products were sued for failing to disclose that their products contained lead.[5]

Unlike the purchasers of the leaded toys, however, consumers of the fruit products were unable to allege an Article III injury. Why? In large part because the products had not allegedly caused physical injuries, had not been recalled and, according to the U.S. Food and Drug Administration, contained lead levels that “would not pose an unacceptable risk to health.”[6]

One might conclude, then, that if a chemical-containing product has been declared safe by the FDA, has not been recalled and does not have a history of causing injury, then chemophobic purchasers of the product will be unable to establish an Article III injury.

But that’s not so clear. In the (still ongoing) multidistrict litigation concerning the chemical bisphenol a (BPA), plaintiffs alleged unwanted chemical exposures from their use of polycarbonate bottles and sippy-cups.[7]

Although the FDA had approved BPA for use as a food contact item[8], and although no allegation had been made of any actual BPA-induced personal injury or product recall, the plaintiffs alleged the existence of a scientific dispute concerning BPA’s ability to cause serious health conditions, even at minute levels.

The district court held that the consumers had established Article III standing: “The key for this category [is] not that someone was injured, but that consumers were not told of BPA’s presence and the corresponding health risks. Perhaps no physical injuries resulted — but a fraud claim does not depend on a showing of physical injury.”[9]

The BPA decision suggests that even a hypothetical risk of harm can form the basis of an economic injury. Does that mean Article III standing is assured in cases where the risk of injury is concrete?

Not necessarily. In one recent case, consumers sued over children’s tagless clothing that contained toxic chemicals (phthalates) that could — and did — cause adverse skin reactions.[10]

The district court rejected Article III standing in light of the fact that “the overwhelming majority of children who wore the garments suffered no adverse effects and Plaintiffs have failed to show that the levels of chemicals in the clothes exceeded standards established by law.”[11]

Similar logic has been used to deny Article III standing in cases concerning weight-loss supplements[12], carcinogens in shampoo[13] and lead in lipstick.[14]

On a case-by-case basis, the district courts have done a commendable job in applying established Article III principles to these difficult chemophobia cases. But looking at all the cases together, there is an obvious and troubling lack of consistency in approach and results. Much of the problem stems from the courts’ failure to clearly and completely address the principles of “risk” that expressly or impliedly underlie their decisions.

“Risk” is a complicated topic, because the word takes on different meanings in different contexts. At one end of the spectrum, there is the “risk” that a chemical product that has already caused actual injury may cause further injuries in foreseeable populations. Aqua Dots is an example.

At the other end of the spectrum is “theoretical risk” — a concept employed by the science of risk assessment. Here, the chemical product has not been shown to have actually harmed anyone, but extrapolations from animal data suggest that, given high enough exposures, there is a “risk” that harm to humans is possible. The challenge will be finding the point on the spectrum where the “risk” is sufficiently concrete to establish an injury in fact.

By focusing on established principles of risk, the courts can bring consistency to their Article III analysis in chemophobia class actions. Until they do — or until the appellate courts begin to weigh in — the future of the chemophobia class action will remain uncertain.

--By Jason Levin, Steptoe & Johnson LLP

Jason Levin is partner in the Los Angeles office of Steptoe & Johnson, practicing in its mass, toxic and environmental tort litigation group.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] In re Aqua Dots Products Liability Litigation, 654 F.3d 748 (7th Cir.2011).

[2] Id. at 751.

[3] In re Mattel, Toy Lead Paint Products Liability Litigation, 588 F.Supp.2d 1111 (2008).

[4] Id. at 1117.

[5] In re Fruit Juice Products Marketing and Sales Practices Litigation, 831 F.Supp.2d 507 (D.Mass. 2011),

[6] Id. at 511.

[7] In Re: Bisphenol-A, 687 F.Supp.2d 897 (W.D. Mo. 2009).

[8] In Re: Bisphenol-A, 276 F.R.D. 336, 342 (W.D. Mo. 2011)

[9] In Re: Bisphenol-A, 687 F.Supp.2d at 912.

[10] Webb v. Carter's Inc., 272 F.R.D. 489 (C.D.Cal.2011).

[11] Id. at 499.

[12] Hughes v. Chattem, Inc., 818 F.Supp.2d 1112, 1118+ (S.D.Ind. Aug 31, 2011),

[13] Herrington v. Johnson & Johnson Consumer Companies, 2010 WL 3448531 (N.D.Cal. 2010); Medley v. Johnson & Johnson Consumer Companies, Inc., 2011 WL 159674 (D.N.J. 2011).

[14] Koronthaly v. L'Oreal USA, 2010 WL 1169958 (3d Cir. 2010); Frye v. L'Oreal USA, Inc., 583 F.Supp.2d 954 (N.D.Ill. 2008).