Kerrygold fails to have US case over cancer-linked chemical thrown out

Ornua, owner of the Kerrygold butter brand, is facing a class action court case in the US over its use of per-and polyfluoralkyl substances, known as PFAS, in its packaging. The case, which began last year, was taken by Carolyn Winans, who claims that PFAS migrates into food, including butter, when the chemicals are present in the packaging.

Winans cited several studies she claimed establish the possibility of PFAS migrating onto food.

In the United States District Court for the Eastern District of New York, Judge Frederic Block said Winans’ theory “strikes the court as plausible”, in a recently published court opinion following the motion to dismiss.

Kerrygold’s butter packaging includes the phrase “pure Irish butter”. Winans alleges misrepresentations regarding the packaging.

Winans, who bought and consumed Kerrygold products, makes various complaints under New York law, including deceptive business practices, false advertising, selling of adulterated or misbranded food and unjust enrichment. She is seeking damages and injunctive relief.

Judge Block decided to deny the Ornua motion that would have led to the case’s dismissal. He did however, support its motion to dismiss Winans’ efforts to receive medical monitoring.

At the motion to dismiss stage, US law says the court must accept as true all of the claims from the plaintiff as factual allegations. Ornua did not have an opportunity to contest the facts in the complaint.

Ornua argues Winans’ claims should be dismissed as she had failed to allege an injury or that any of the Kerrygold products contained PFAS.

Block rejected Ornua’s argument that Winans should provide lab tests showing its butter contained PFAS. While he said it might be sensible in other cases, Ornua removed its products from stores because the packaging contained PFAS.

Ornua recalled its Kerrygold products in response to a New York law banning PFAS from packaging

Ornua also claimed Winans had failed to plead an actionable misrepresentation over its use of the term “pure Irish butter” on the packaging. The dairy giant claimed the phrase actually meant that the butter was purely from Ireland, rather than the quality of the butter.

Block said it was plausible a reasonable consumer would conclude that the adjective “pure” modifies the noun butter.

Block also rejected Ornua’s argument that Winans had failed to allege the dairy group knew about PFAS.

“Ornua recalled its Kerrygold products in response to a New York law banning PFAS from packaging, which suggests Ornua was at the very least aware that its packaging did contain the chemical,” he said.

Ultimately, Block decided to deny Ornua’s motion to dismiss the case.

The class action, still at an early stage, continues. The judge has not made any ruling determining whether Ornua has broken any US laws or if PFAS was present in the butter.

In early 2023, Ornua removed Kerrygold butter products in preparation for new laws in New York and California that banned PFAS from food packaging.

PFAS is found in thousands of goods. Exposure to PFAS – a category of synthetic chemicals often called “forever chemicals” – has been linked to health issues, including cancer.

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.”

A lawyer for Winans said they were pleased with the court’s decision, and would continue to vigorously prosecute the matter on behalf of the class of consumers in order to keep their food chain safe from harmful chemicals.