HARRISBURG - The Hershey Company faces a proposed class action lawsuit that alleges its products contain the controversial chemicals known as PFAS.
The lawsuit of Bernadette Beekman is one of many consumer cases alleging companies misled the public with health and safety claims while also using packaging that contains PFAS.
Texas Attorney General Ken Paxton has gone so far as to sue 3M and DuPont for false advertising, while other litigation on behalf of public water systems has led to more than $1 billion in settlements.
Beekman's case says PFAS can migrate from packaging to the food inside. She names Hershey's milk chocolate bars and kisses, Reese's peanut butter cups and Almond Joys as the Hershey products she has purchased in the past.
She also points out Hershey claims to "support consumers' right to know what is in their food" and "holds [itself] to the highest quality, safety and sustainability standards."
"Defendant knows that its customers desire chocolate products that are safe for consumption, and that these customers will pay more for products they believe are sustainable and free of toxins," the suit says.
"Defendant also knows that reasonable consumers would not knowingly consume, or feed to their families, products that contain or have a risk of containing PFAS."
PFAS are dubbed "forever chemicals" because they persist in groundwater and human tissue for years. They are found in firefighting foam and consumer products.
The federal government has set a maximum contaminant level for PFAS, even as groups call the move premature. Much of the research regarding their effect on the human body is disputed, with the American Chemistry Council calling the EPA's regulation "rushed" and "unscientific."
Still, lawsuits sprung up. States hired contingency lawyers for contamination lawsuits and pushed through their own regulations while the EPA decided its MCL. 3M, DuPont, Tyco and BASF have reached settlements in South Carolina that will bring in massive fees for the private lawyers representing the water systems.
Nantucket Nectars defeated a class action that said consumers wouldn't have bought the product had they known PFAS was present in the bottles, as did the maker of Simply Tropical juice drinks.
The Nantucket Nectars plaintiff failed to show the bottle he drank from contained PFAS, while the plaintiff in the Simply Tropical case said he was duped into buying the juice because it was marketed as all natural while containing PFAS.
Testing tripped that case up too, considering the plaintiff failed to connect testing on some bottles to the one he drank from.
Plaintiffs suing the Mediterranean food restaurant chain Cava Grill defeated its motion to dismiss but withdrew their claims. Companies nationwide like Burger King and McDonald's face PFAS class actions.
For instance, Ornua Foods faces suit for calling its Kerrygood butter sticks "pure" while the packaging contained PFAS.
Some of the existing science comes as a result of an effort by plaintiffs lawyers who took on DuPont over the release of PFOA, which is in the group of PFAS, around one of its plants near the Ohio River in West Virginia.
Personal injury lawyers and DuPont agreed to a plan that created a so-called “science panel” and had the company pay for the medical monitoring of residents around the plant. Medical monitoring is a controversial claim for relief on behalf of uninjured plaintiffs that would drive up the cost of a settlement and with it, the amount their lawyers could recover.
The majority of states don't allow such claims.
By 2012 and after studying more than 30,000 participants, the science panel said there was a probable link to six diseases.
The cases paid off for lawyers in 2017, when DuPont ponied up $671 million to settle 3,500 lawsuits.
Several lawyers signed on to the Hershey case, including Patrick Howard of Saltz, Mongeluzzi & Bendesky. He is joined by lawyers at Gustafson Gluek in Minneapolis, George Feldman McDonald PLLC in New York and Faruqi & Faruqi in Philadelphia.