A California judge has approved a motion to stay discovery in an ongoing class-action lawsuit accusing a prominent purveyor of period-proof panties of using a harmful class of “forever chemicals” in its menstrual products.
In court documents filed last week, Hon. Edward J. Davila granted Knix’s request to pause the information-exchange process pending the results of previous motions by the Canadian retailer to throw out the case and sanction the plaintiff’s lawyers because of the “inadequacy” of a complaint that should not have been submitted “in the first place.”
“Knix already is burdened significantly by the resources—including time, money and 28 personnel—it has been forced to divert to the defense of this lawsuit,” the motion said. “Yet [the] plaintiffs have made clear that they intend to force Knix to expend even more resources while waiting for this court to address two motions that cast serious doubt on the sufficiency of [their] allegations and the propriety of [their] suit.”
The original complaint, filed in April by Marisa Franz and Gemma Rivera on behalf of themselves and “similarly situated consumers” alleged that Knix’s period underwear is “unfit for their intended use” because it contains per- and polyfluoroalkyl substances, or PFAS, which have been linked to a wide range of human-health effects, including hormone disruption, reduced immune response, changes to liver function, thyroid disease, higher rates of infertility and some cancers.
The plaintiffs cited as evidence an investigation conducted last July by an EPA-certified laboratory on behalf of the consumer health blog Mamavation. A pair of Knix high-rise briefs, it found, contained 373 parts per million (ppm) of organic fluorine, a marker for PFAS, in the crotch area. Because BPI Industries, a Pittsburgh-based processor of industrial minerals, employs the standard of 100 ppm of fluorine to determine if PFAS was intentionally added, Mamavation said that it has “done the same.”
Knix, the lawsuit argued, is misrepresenting its claim that its products are “free from PFAS and other toxic chemicals,” and “designed to be both safe and effective.”
“Accordingly, use of the products would expose a consumer to PFAS at levels that are several orders of magnitude higher than one would receive from drinking a liter of water that contains PFAS at the level considered safe by the EPA,” the plaintiffs said. “This is particularly worrisome given the nature of the products. Because the underwear is ‘right up against the vagina’ and rests ‘snug[ly] against the vulva for an extended period of time’ consumers are at a heightened risk of exposure to PFAS.”
The lawsuit seeks to bring the company to task for a litany of alleged transgressions, including violations of California’s Unfair Competition Law, the Consumer Legal Remedies Act and False Advertising Law.
The Golden State passed legislation last year outlawing the use of PFAS in some infant and children’s products. It’s now considering banning them across all textiles. Other states mulling the same include Maine, New York and Washington.
The plaintiffs’ lawyers said that both Franz and Rivera “reasonably relied” on Knix’s depiction of its products’ safety, including certification by Oeko-Tex, and would not have purchased them if the “true facts had been known.” Because of this, the plaintiffs and the class are “further entitled to damages for the injury sustained in being exposed to high levels of toxic PFAS, damages related to [the] defendant’s conduct and injunctive relief,” they said.
In a motion to dismiss filed in June, however, Knix said that the plaintiffs and their lawyers “have no idea whether any Knix product actually contains fluorine or not, let alone the specific type of fluorine (organic fluorine) that can potentially indicate the presence of PFAS. Indeed, they conducted no independent investigation whatsoever to even attempt to confirm the truth of that assertion.” The retailer derided the lawsuit’s allegations as “tenuous” and based on “unsubstantiated claims” from a “mom blog.”
A follow-up motion called the accusations “so patently insufficient as to warrant Rule 11 sanctions,” which are intended to punish lawyers for submitting groundless or frivolous lawsuits. Franz and Rivera’s lawyers at the firm of Bursor & Fisher did not immediately respond to a request for comment.
“Rule 11 exists to prevent this very type of ‘file first and ask questions later’ pleading,” Knix said. “The rule requires that the filing attorney personally conduct a reasonable investigation; it does not allow him to simply regurgitate unsupported and defamatory accusations from internet bloggers who are not subject to court rules.”
The retailer said that Mamavation failed to provide details such as the name of the lab, the sample collection process and the testing methodology. All of these, it said, are important because “fluorine is ubiquitous in the environment and Mamavation itself acknowledges that fluorine detection can result from contamination before or during the testing process.”
Knix also said that the plaintiffs failed to “plausibly allege” that the products they purchased actually contained fluorine, and that they “failed to plead their fraud-based claims with particularity.”
“We have been very transparent about our ongoing testing for PFAS and fluorine and continue to update and share our negative results on our website,” the company told Sourcing Journal. “We take product safety very seriously and sincerely apologize to our customers for any fear or confusion that this is causing.”
“This is an unfair attack on our brand integrity,” Knix added. “Any suggestion that our products are somehow unsafe is wrong.”
Still, PFAS, which imbue textiles with water and stain resistance, are a real problem that has been plaguing the fashion industry. Outdoor brands, in particular, have struggled to give them the kiss-off, although all categories have their laggards, according to a recent study.
Martin Mulvihill, co-founder and managing partner at Safer Made, a San Francisco-based venture capital fund that invests in companies that reduce human exposure to toxic chemicals, said setting goals for eliminating PFAS is “critical” for protecting both workers and the environment because the chemicals persist in the environment for a very long time.
“The more that we learn about this group of chemicals, the more clear it is that we should avoid their use when possible,” he previously told Sourcing Journal. “The good news for textiles is that there are an increasing number of PFAS-free solutions available and in recent years they have been catching up in terms of cost and performance to be competitive or better than many of the PFAS chemistries.”