A common thread connects a growing number of consumer product class actions filed over the past two years: in nearly every case, the lawsuit traces back to a test result generated by an outside laboratory or consumer advocacy organization. Adhesive bandages alleged to contain PFAS. Children’s toothpaste found to have elevated lead levels. Smartwatch wristbands, tampons, juice containers, and candy, all flagged by third-party testing and all now the subject of proposed class actions.

PFAS litigation, once dominated by industrial contamination and firefighting foam, has moved squarely into the consumer products space. Heavy metals, benzene, and other contaminants are fueling parallel litigation tracks. For manufacturers, the practical question is no longer whether their products might be tested by an outside entity, but when, and whether they are prepared for what follows.

The Testing-to-Litigation Pipeline

The mechanism is now well established. An outside lab or advocacy organization tests a consumer product, identifies a chemical of concern, and publicizes the results. Plaintiffs’ attorneys file suit, relying on those results to support claims of deceptive marketing, failure to disclose, or breach of warranty. What has drawn increasing scrutiny is the relationship between some of these testing entities and the litigation itself. Court proceedings and recent reports have revealed that certain labs have significant financial ties to plaintiffs’ law firms, that some methodologies were developed specifically for litigation rather than through independent scientific inquiry, and that in at least one high-profile case, a court found that a lab’s methodology may have created the very substance it claimed to detect.[1]

Testing methodology has become the pivotal issue. In the PFAS context, a recurring dispute involves total organic fluorine (“TOF”) testing. TOF analysis can detect the presence of fluorine, which may indicate PFAS contamination, but fluorine appears in many non-PFAS compounds, and the test cannot identify which specific PFAS is present, at what concentration, or whether actual consumer exposure poses any risk. A California federal court recently rejected TOF testing as insufficiently reliable in a case involving tampons marketed as “pure cotton.”[2] Plaintiffs in other pending cases counter that TOF is the only available method capable of screening for the thousands of PFAS compounds for which targeted testing does not yet exist.[3]

Similar dynamics appear outside the PFAS context. In litigation over heavy metals in children’s toothpaste, claims rely on testing by a consumer safety organization that detected lead and arsenic at levels plaintiffs characterize as unsafe. A New York federal court recently allowed some of those claims to proceed, finding that the plaintiff adequately alleged an economic injury: that he overpaid for a product marketed as “safe” and “healthy” without knowing about the contaminants.[4] Notably, the court did not require proof of physical harm. This “benefit-of-the-bargain” theory, in which plaintiffs argue that undisclosed contamination diminished the value of the product rather than caused illness, is becoming the predominant framing in these cases and significantly lowers the threshold for surviving early motions to dismiss.

Stronger Tools for Defendants

While economic injury theories may help plaintiffs clear early procedural hurdles, defendants have increasingly powerful tools at later stages. The 2023 amendments to Federal Rule of Evidence 702 strengthened courts’ gatekeeping obligations, emphasizing that the party offering expert testimony bears the burden of showing that the expert’s opinions are more likely than not based on reliable methods.[5] Courts have already applied these standards to exclude plaintiffs’ experts in major mass tort litigation, where the underlying science was found to have been developed for litigation, to lack peer review, or to reflect cherry-picked data.[6] Several states have adopted or are considering adopting these reforms. The result is a two-track landscape: cases may survive early dismissal on relatively thin allegations, but defendants who mount well-prepared challenges to testing reliability and expert methodology have a meaningful path to prevail.

What Manufacturers Should Do Now

Given the pace at which this litigation is expanding, manufacturers in targeted categories (personal care, food packaging, children’s products, apparel, and wellness technology) should be thinking proactively. Supply chain visibility is essential: many manufacturers do not themselves use PFAS or heavy metals but may be exposed through components or packaging sourced from suppliers. Marketing and labeling language also matters, as claims like “safe,” “pure,” “natural,” and “healthy” are precisely the representations that plaintiffs seize on when third-party testing reveals an undisclosed contaminant.

Companies conducting their own testing should understand the distinction between broad screening methods and targeted analytical techniques. A screening test that detects fluorine may raise more questions than it answers if it cannot identify the specific compound or whether it is present at a level of concern. And perhaps most importantly, manufacturers should prepare for the possibility that a third-party organization will test their product before they do. Having a response plan, including the ability to quickly obtain independent testing, evaluate the methodology used, and assess legal exposure, can make the difference between a measured response and a reactive one.

This area of litigation is still developing, and courts are reaching different conclusions across jurisdictions. But the trend is accelerating, and companies that take a proactive approach will be far better positioned than those that wait. For manufacturers seeking guidance on contamination risk assessment, litigation readiness, or compliance strategy, the CMBG3 team stands ready to assist.

Louis Miyani is an associate at CMBG3 Law.

[1]In re Zantac (Ranitidine) Products Liab. Litig., 644 F.Supp.3d 1075 (S.D. Fla. 2022).

[2]Bounthon v. Procter & Gamble Co., No. 2:24-cv-01758 (C.D. Cal. Oct. 15, 2024).

[3]Jo Aronstein et al. v. Kenvue Inc. et al., No. 3:24-cv-04665 (D.N.J.).

[4]White v. Tom’s of Maine, Inc., No. 1:24-cv-03360 (E.D.N.Y. Mar. 12, 2026).

[5]Fed. R. Evid. 702 (amended Dec. 1, 2023).

[6]See, e.g., In re Acetaminophen – ASD-ADHD Prods. Liab. Litig., No. 1:22-md-03043 (S.D.N.Y. Dec. 22, 2023); In re Zantac (Ranitidine) Products Liab. Litig., 644 F.Supp.3d 1075 (S.D. Fla. 2022).