On Monday, Burger King Corporation filed a motion to dismiss in the Northern District of California in the class action case of Hussain v. Burger King Corporation, which Law Street Media previously covered.
On April 11, Azam Hussain filed the initial complaint against Burger King alleging unfair competition and fraud for the use of per- and polyfluoroalkyl substances (PFAS) in its Whopper’s packaging. The complaint stated that PFAS are a group of synthetic chemicals known to be harmful to both the environment and humans.
The plaintiff argued that the presence of PFAS in the Whopper’s packaging contradicted Burger King’s representations that the burger is safe for consumption and a sustainable product, amounting to false advertising, unfair competition and fraud. Further, the complaint alleged that Hussain and other similarly situated consumers were harmed and deceived by Burger King’s false advertising due to the presence of PFAS in the Whopper’s packaging.
Conversely, Burger King’s motion to dismiss, it argues that the plaintiff’s claims are filled with conclusory assertion that Burger King’s products are unsafe because the product packaging contains PFAS. Additionally, Burger King argues that the claims by the plaintiff are preempted by federal law because the claims are inconsistent with Food and Drug Administration (FDA) regulations governing food contact substances such as PFAS.
Specifically, the motion states that since the 1960s, the FDA has authorized specific PFAS for uses in food packaging, and Burger King’s Whopper packing and other product packaging is compliant with federal law and FDA regulations. Thus, Burger King argues that its food products are not adulterated, unsafe or illegal for sale as alleged in the complaint.
Given the FDA regulation of PFAS and Burger King’s compliance with such regulation, it argues that the plaintiffs have failed to plead any actionable claim due to federal preemption. Further, Burger King purports that the plaintiffs lack standing to for its prospective injunctive relief because its claims directly conflict with the FDA regulatory approval process establishing that Burger King’s use of PFAS in its packaging does not render the product unsafe. Burger King states that the plaintiff’s plea for regulatory reform regarding PFAS is better suited for other political branches and not the courts.
The plaintiffs are represented by Bursor & Fisher, P.A., and Burger King is represented by Weil, Gotshal & Manges LLP.
