Two Bay Area consumers have filed suit in federal court in San Francisco alleging that their toothpaste contained potentially harmful levels of per- and polyfluoroalkyl substances, also known as PFAS, the so-called “forever chemicals.”

The suit claims that by representing its toothpaste as “natural,” Davids Natural Toothpaste, Inc. of Menifee, California, violated state laws on advertising and fair competition.

Alexandra Schoeps of Napa and Marley Stubblefield of Hayward asked the U.S. District Court for the Northern District of California to certify a nationwide class action of consumers who purchased Davids on or after April 1, 2020.

Their 25-page complaint, chock-a-block with footnotes, draws a sharp contrast between scientific reports and studies of chemicals in PFAS and screenshots of Davids website where the company touts the benefits of the “high performance natural toothpaste” that is “naturally sourced” and contains “naturally derived ingredients.”

The Davids website touts the benefits of its “naturally sourced” toothpaste and the “clean ingredients” it contains. But plaintiffs in a lawsuit against the company dispute these claims, saying lab tests found the product contains PFAS chemicals. (Screenshot via Davids-usa.com)

In one seemingly damning paragraph, plaintiffs allege that “a Department of Defense ELAP-certified laboratory, which was commissioned to test the Product, found that it contained over 6 parts per billion of (PPB) of PFAS.”

For those who might not be able to determine the implications of that number, the complaint references research which allegedly found quantities of PFAS in the vegetable kale that was “20 times less” than what was found in Davids product to have “stunned” the researchers. (A request to plaintiffs’ lawyers for a copy of the study was not fulfilled by Tuesday afternoon.)

CEO responds to PFAS allegations

Eric David Buss, founder and chief executive officer of Davids, answered an inquiry about the lawsuit stating, “Davids uses only food grade ingredients from top tier suppliers, and... PFAS testing we have done to date on our product shows that there is no PFAS present in our toothpaste.”

Buss said that he has not seen the study referenced in the complaint.

Buss went further: “The bigger story is that lawyers go out of their way to create bogus lawsuits in the hope of shaking down manufacturers for a quick settlement out of court. What is going on in the legal system is the equivalent of legalized extortion, and it would be very worthwhile to write about how lawyers are getting away with abusing our legal system.”

According to the National Institute for Environmental Health Sciences, PFAS are “a large, complex group of synthetic chemicals that have been used in consumer products around the world since about the 1950s.” An EPA estimate is that 15,000 chemicals fall under the general category of PFAS.

“The bigger story is that lawyers go out of their way to create bogus lawsuits in the hope of shaking down manufacturers for a quick settlement out of court. What is going on in the legal system is the equivalent of legalized extortion. ...”

Eric David Buss, Davids CEO

PFAS are used in many different products including cookware, food packaging, cosmetics, and personal care products. One of the largest uses is firefighting foam. PFAS can be found in drinking water, as well as in fish and animals.

PFAS are sometimes called forever chemicals because they are very slow to degrade which means that when they get into the human body, levels can grow over time with additional exposures.

While human exposure to PFAS is widespread, it varies from person to person depending on where they live and what they do at work.

The impact on human health is not fully known.

Health effects being studied

NIEHS says “it is important to note that there are thousands of variations in PFAS chemicals, which can make them hard to study. But the research conducted to date reveals possible links between human exposures to certain PFAS and some adverse health outcomes.”

Among them, increased risk of certain cancers and negative effects on the immune system.

In a review of PFAS litigation in 2021 and 2022, BCIL, an international law firm that handles PFAS cases and advises on PFAS risks, noted a sharp rise in 2022 in litigation over PFAS in food and food packaging, and in cosmetics including makeup and other beauty products. The firm added that they found “a less significant increase in the similar, yet distinct, personal care products category, which includes toiletries such as shampoo, soap, and toothpaste.”

A Davids Natural Toothpaste product description used in a class action complaint against the company shows Davids claims to be an all-natural product, but a new lawsuit claims the toothpaste contains PFAS chemicals. (U.S. District Court Northern District of California via Pagransen)

The plaintiffs’ complaint says that the study it references was performed by a “Department of Defense Environmental Laboratory Accreditation Program-certified laboratory” that was hired by plaintiffs’ lawyers to test one of Davids products. The lab was not identified by name.

The complaint does not identify which specific chemicals were found, nor whether they were found in the toothpaste, the tube or the packaging materials.

Plaintiffs are represented by Bursor & Fisher, a law firm that describes itself as “a nationwide leader in complex, high-stakes litigation. Our lawyers take on cases that affect the lives of millions of people, and seek justice on a grand scale.”

The firm’s website assures prospective clients that “You Pay Nothing Unless We Recover Money For You,” referring to the fact that it operates on a contingency fee basis where the lawyers are paid only from the damage award or settlement proceeds.

Joe Dworetzky is a second career journalist. He practiced law in Philadelphia for more than 35 years, representing private and governmental clients in commercial litigation and insolvency proceedings. Joe served as City Solicitor for the City of Philadelphia under Mayor Ed Rendell and from 2009 to 2013 was one of five members of the Philadelphia School Reform Commission with responsibility for managing the city’s 250 public schools. He moved to San Francisco in 2011 and began writing fiction and pursuing a lifelong interest in editorial cartooning. Joe earned a Master’s in Journalism from Stanford University in 2020. He covers Legal Affairs and writes long form Investigative stories. His occasional cartooning can be seen in Bay Area Sketchbook. Joe encourages readers to email him story ideas and leads at [email protected].