A lawsuit filed last month in a U.S. District Court in Washington State seeks $5 million in damages from outdoor apparel maker and retailer Recreational Equipment, Inc. for approximately 100 plaintiffs who say they were duped when they purchased any of several jackets made by the cooperatively owned, Seattle-based chain. A similar class-action lawsuit filed in a California federal court earlier this year ended in July when lead plaintiff Lauren Lupia asked the court to dismiss the case without prejudice.
If upwards of $50,000 per plaintiff seems on the hefty side it’s because the suit is only as much about consumer protection as it is the growing effort to stop the use of per- and polyfluoroalkyl substances, commonly known as PFAS. Called ‘forever chemicals’ because they do not break down for thousands of years, PFAS are frequently used in outdoor apparel for their ability to repel rainwater. Due to that trait, PFAS are commonly found in non-stick, fire-resistant, stain-resistant household items, not to mention food packaging.
Though they work exceedingly well at repelling water, oil and just about anything someone could spill on a rug, sofa or raincoat, science is also coming to understand just how dangerous they can be to humans. PFAS have been linked to adverse outcomes ranging from fertility problems, liver damage, and cancer to a higher likelihood with getting thyroid disease and various other health ailments.
Present in daily life since the 1950s, PFAS are now found in the blood of 97 percent of Americans and, to some degree, are endemic to the environment, including the water and just about everything people buy.
A handful of states, led by California and Washington, have taken legislative measures to ban ‘intentionally used’ PFAS by as early as 2025, and at the federal level, the Environmental Protection Agency has proposed regulation of the chemicals, but nothing has been enacted thus far.
Intentional use is any that tests above 100 parts per million of these chemicals in a laboratory environment.
Here in 2022 it is still lawful for apparel makers like REI to sell items containing PFAS in all 50 states, so in the meantime, attorneys with an eye toward tightened regulation of forever chemicals are taking a different tack to apply pressure. In the case of Jacob Krakauer, et al. vs. REI, it’s suing for what might be considered tantamount to false advertising, or as it’s often called in the modern vernacular—greenwashing.
Plaintiffs’ lawyers accuse REI of using environmentally conscious marketing that claims the co-op has “eliminated long-chain PFAS,” as evidence that it defrauded and financially injured the aggrieved parties. Proof that REI products do, in fact, contain intentional PFAS comes from a study done in September 2022 that, according to the complaint, “reveal that an REI XeroDry GTX Jacket contains 48,577 parts per million of the PFAS chemical organic fluorine, a level more than 485 times the 100 ppm of fluorine that indicates intentional use of PFAS.”
“[REI made] material misrepresentations to boost or maintain sales of the Products, and to falsely assure purchasers of the Products that Defendant is a reputable company and that its Products are safe for use and sustainable,” contends the lawsuit. “The false representations were material to consumers because the representations played a significant role in the value of the Products purchased.”
REI, which said it would not comment on ongoing litigation or whether it knew about the results of the September study, pointed to its statement on the California law set to go in effect in 2025 in which it does acknowledge it still uses some PFAS. “The co-op has been working for years to phase out PFAS, testing new alternatives in pursuit of the performance standards our customers expect and need in the outdoors,” said REI, which was targeted by anti-PFAS protestors in September. “We support this bill and thank the legislators whose actions will help speed the broader industry’s transition away from the use of these chemicals. We will continue to engage our vendor partners as the entire outdoor industry works to align with the California framework.”
The suit does not allege that any of the plaintiffs have been harmed by PFAS. However, it requests that they be monitored for health issues to mitigate for any future medical treatment.
The suit does, however, accuse REI of knowing about the results of the September study and not informing the public.
“Defendant was negligent and breached its duty of care by concealing the risks of and failing to warn consumers that the Products contain chemicals known to cause adverse health effects in humans,” the lawsuit contends in the seventh of 10 counts ranging from fraud and concealment to violation of Washington’s Consumer Protection Act.
There has yet to be a successful lawsuit against an apparel maker for its product causing physical harm through PFAS, for a number of reasons; one being that with PFAS endemic, proving cause would not be simple or straightforward. Also, one industry expert says, long-chain PFAS does not leach off whatever it’s applied to for many, many years, which is the point of the ‘forever chemical.’ The greater concern, this source says, is PFAS going into landfills, being repeatedly compacted and impacted by weather until it develops into a larger environmental concern.
This makes the public shaming groups that like the Natural Resources Defense Council (NRDC) employ a valuable tool for environmental activists.
“We encounter [greenwashing] all the time and it’s essentially companies taking very small steps toward environmental responsibility, or really no steps but claiming they are very responsible citizens, and that is why we are pushing the outdoor apparel industry to not be greenwashers,” Sujatha Bergen, the NRDC’s director of Health Campaigns, Health and Food Division, told Sourcing Journal. “We’re pushing them aggressively to remove PFAS and communicate that publicly; otherwise they risk being listed as greenwashers, which is so sad because of the ties between the environment and outdoor life.”
Bergen has been actively campaigning to compel apparel maker Columbia to publicly announce its plans to eliminate PFAS. She said that Columbia, a brand carried by REI in its retail stores, has yet to make a public promise, and neither has REI.
Both companies have received F’s on PFAS report cards published by the NRDC earlier this year.
Bergen said some outdoor apparel brands have made public promises to eliminate PFAS from its line and that it’s not fair to the companies walking the talk to let the others go unscathed.
“Patagonia, for instance, has committed at the beginning of 2024. They’ve put it on their website and it’s very transparent where they’re at with their PFAS journey,” she said. “Keen Footwear is another that has made great efforts to remove it, so for others to take credit on PFAS without doing the work is somewhat wrong… it’s unacceptable if they don’t want to be labeled as ‘greenwashers.’”
Lawsuits over the environmental impact of PFAS, however, have been successful, including in Michigan against shoemaker Wolverine which voluntarily paid out $54 million to property owners whose water was affected by more than 60 years of sludge waste with PFAS trickling into the water supply from a nearby tannery.
The laws coming into effect in California and Washington could well have impact nationwide on apparel makers as it may be all but logistically impossible for manufacturers to segregate one version of a product from another, thereby forcing a national standard even before federal policymakers even have a say in the matter.
“That is our hope that as companies looking to reformulate for California, they will find it will be cost effective and time efficient for them to change for the whole country,” Bergen said. “The federal government has not been a leader on the PFAS issue.”
The barrier to implementing alternatives to PFAS in manufacturing may not be so much about the cost of implementing alternatives as it is the research and development required for the additional laboratory testing involved for what are estimated to be between 4,000 and 12,000 types of these chemicals.
For this, Bergen said, leadership at the federal level is imperative.
“They are not treating PFAS as a class of 12,000 chemicals; they are under a lot of pressure from the industry to treat them one by one by one as they consider regulating them,” Bergen said. “The federal government has abdicated leadership so we need the markets to intervene.”