Ornua has failed in its attempt to have a case alleging that chemicals previously used in its Kerrygold packaging could have migrated to its butter dismissed.
The case taken by New York resident Carolyn Winans relates to the alleged presence of per- and polyfluoralkyl substances (PFAS) in Kerrygold salted and unsalted butter sticks.
She claims exposure to PFAS, a category of synthetic, artificial chemicals often called “forever chemicals”, is linked to several health issues, including cancer, fertility and developmental delays.
In early 2023, Ornua temporarily paused the supply of certain Kerrygold butter products in response to a New York state law banning PFAS in food packaging.
Kerrygold
Winans, who purchased and consumed Kerrygold butter products, filed the case last year alleging that there were “misrepresentations in the packaging” of the products.
The complaint, who cites several studies on migration theory, claims that despite the packaging reading “pure Irish butter”, the products contained PFAS.
Winans, who is seeking financial damages as well as injunctive relief, has brought several claims under New York law, including deceptive business acts, false advertising and selling of adulterated or misbranded food.
In a recently published court opinion following a motion to dismiss from Ornua, Judge Frederic Block, in the US District Court for the Eastern District of New York, said that Winans’s theory “strikes the court as plausible”.
“For the court to conclude it implausible that PFAS could migrate from packaging to butter, it would need to draw reasonable inferences against Winans and impose too heighted of a pleading standing on the plaintiff,” the judge said.
Under US law at the motion to dismiss stage, the court is required to accept as true all of plaintiff’s (in this case Carolyn Winans) asserted factual allegations and draw all reasonable inferences in favour of them.
This means that at this stage Winans is not required to prove the facts of her case, while the defendant, Ornua, does not have an opportunity to contest the facts.
Ornua
Ornua had sought for all of the claims to be dismissed because Winans has not adequately alleged an injury or because she failed to plausibly allege that any of the Kerrygold butter products contained PFAS.
It also said that Winans should provide laboratory tests to prove her claims.
The dairy processor said that the phrase “pure Irish butter” on the Kerrygold packaging is not misleading because it is a claim about Kerrygold’s single-source, Irish origin rather than about the quality of the butter.
However, Judge Block said that “assuming the butter contains PFAS, the court concludes that a reasonable consumer could be misled by the ‘pure Irish butter’ label”.
“It is plausible that a reasonable consumer reading the label would conclude that the adjective ‘pure’ modifies the noun, ‘butter’,” he said.
The judge added that “while Ornua argues that Winans has not plausibly alleged that Ornua knew of the PFAS presence, the court concludes that Winans has”.
“Ornua recalled its Kerrygold products in response to a New York law banning PFAS from packaging, which suggests that Ornua was at the very least aware that its packaging did contain the chemical.
“It seems at least plausible that Ornua may have suspected that the PFAS could migrate from the packaging to the product.
“While discovery may reveal otherwise, the court, drawing inferences in Winans’s favor, cannot dismiss the omissions based claims at this juncture,” he added.
Judge Block denied the part of Ornua’s motion to dismiss which would have seen the case thrown out.
However, the judge did grant the part of application by Ornua denying medical monitoring for Winans.
In a statement issued to Agriland, a spokesperson for Ornua said: “We won’t comment specifically on pending litigation other than to say we believe these claims lack merit and we look forward to rigorously defending the integrity of our products.”