Smucker pet food PFAS class action lawsuit moves toward certification

Smucker PFAS class action overview:

• Who: A federal judge said he is inclined to certify a class of consumers who allege The J.M. Smucker Co. failed to disclose risks of per- and polyfluoroalkyl substances (PFAS) in its pet food packaging for some of its products, including 9Lives, Kibbles ‘n Bits and Meow Mix.
• Why: The judge said the consumers’ claims that they relied on the health statements on the packaging are plausible and sufficient.
• Where: The Smucker PFAS class action lawsuit was filed in California federal court.

A California federal judge has signaled he is leaning toward certifying a class of consumers who allege Smucker failed to warn about the risks posed by so-called PFAS “forever chemicals” in pet food packaging that may contaminate kibble.

U.S. District Judge William H. Orrick said during a hearing that many of the issues raised by Smucker “are better addressed on the merits.”

Orrick made the remarks during a Zoom hearing on plaintiffs Sandra Jeruchim and Melissa Vargas’ motion for class certification in litigation concerning dog food packaging allegedly containing toxic PFAS.

The Smucker PFAS class action lawsuit, originally filed in November 2022 by Robin Humphrey, who has since been replaced as lead plaintiff, alleges Smucker and its parent company, Post Consumer Brands LLC, failed to disclose that their pet food packaging contained synthetic PFAS chemicals despite evidence that PFAS may materially affect animal health.

Consumers claim that even though PFAS may contaminate pet food, packaging for products, including 9Lives, Kibbles ‘n Bits and Meow Mix, promotes the food as healthy and safe. The plaintiffs seek to certify a class of California consumers who purchased the products between Nov. 4, 2018, and Dec. 31, 2022.

Smucker PFAS class action: Consumers overpaid for pet food products

Orrick said at the hearing that the consumers’ allegations that they relied on health-related representations on the packaging are plausible and sufficient at this stage. He also found their claimed injury — that they overpaid for the products and can no longer rely on the packaging due to a loss of trust in the company — adequate to establish standing.

Orrick added that whether PFAS actually migrates from the packaging into the pet food is an issue that goes to the merits of the case. He also noted that Smucker has not challenged the testimony of the consumers’ expert, Melinda Wilkins, a professor in the University of Minnesota’s College of Veterinary Medicine, through a Daubert evidentiary motion.

Defense counsel Michael Ruttinger of Tucker Ellis LLP responded by acknowledging that the arguments present “at a minimum merits-adjacent issues” but maintained that determining whether an unreasonable safety hazard can be proven on a classwide basis requires “some degree of merits analysis.”

Ruttinger further argued that Wilkins relied on PFAS studies involving food packaging that is “fundamentally different” from Smucker’s packaging, which he said consists of three layers, including ink and a clear coat over the PFAS-containing component.

He also contended that consumers cannot establish a causal link between the alleged failure to disclose PFAS in the packaging and whether they would have purchased the pet food or altered their purchasing decisions had such disclosures been made.

Earlier this year, Smucker faced a class action lawsuit claiming it falsely advertised its fruit spreads as “natural” and “made with ingredients from natural sources,” even though they contain citric acid, an artificial ingredient.

Have you ever purchased Smucker pet food products? Let us know in the comments.

The consumers are represented by L. Timothy Fisher and Julia K. Venditti of Bursor & Fisher P.A.

The Smucker PFAS class action lawsuit is Humphrey, et al. v. The J.M. Smucker Co., Case No. 3:22-cv-06913, in the U.S. District Court for the Northern District of California.

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