Thinx, Inc. to Settle PFAS/PFOA Lawsuit

New York, NYIn late January, Thinx, Inc. announced that it had reached a $5 million settlement agreement to end Dickens v. Thinx, Inc., a class action perfluoroalkyl and polyfluoroalkyl (PFAS/PFOA) lawsuit. Thinx will provide up to $5 million to reimburse consumers who bought the company’s signature period underwear between November 12, 2016 and November 28, 2022. To put this in perspective, reimbursements are limited to $7.00 per pair (up to 3 pairs) for consumers who still have receipts and $3.50 per pair (same limit) for those who do not. The initial purchase price of these undies runs up to $35.00 per pair.

The PFAS lawsuit did not allege that users have suffered adverse health consequences because they wore Thinx underwear. Rather, this is a lawsuit about misleading marketing claims. At issue were the cheeky advertisements that touted washable, reusable, lacy Thinx panties as “organic, sustainable and nontoxic” alternatives to traditional one-use menstrual products, like pads and tampons.

Outing the Truth

In 2020, Jessian Choy, a writer for Sierra magazine, disclosed that testing of (unworn) Thinx underwear conducted by Dr. Graham Peaslee of the University of Notre Dame had revealed  high levels of per- and polyfluoroalkyl substances, especially on the inside layers of the crotch. The ostensibly “organic” adult brief had 3,264 parts per million (ppm), and the “organic” product marketed to teens had 2,053 ppm.  It appeared, according to Dr. Peaslee’s research, that the products were intentionally manufactured with PFAS chemicals. These chemicals may have been added to the products in order to enhance moisture-wicking qualities and leak resistance.  

In addition, the underwear tested positive for certain heavy metals, including tens to hundreds of ppm of copper on the inside of the crotch, and zinc on both sides. The Thinx website had disclosed that their products had been treated with nonmigratory silver, which was thought to control odor and the spread of bacteria.

Dickens, filed in May 2022, alleges that, “The presence of these chemicals [PFAS and silver nanoparticles] contradicts all of Thinx’s unvarying representations that the product is nontoxic, harmless, sustainable, organic, environmentally friendly, and otherwise safe for women and the environment.” Further, the Complaint alleges that these false claims misled consumers into paying a premium price for a product that was not as advertised.

PFAS/PFOA Contamination and a Sidestep into Chemistry

According to the Complaint, humans can be exposed to PFAS in a variety of ways, including through ingestion, inhalation, and skin absorption. It is important, however, to know the difference between long-chain PFAS and short-chain PFAS in order to understand what the scientific community has been able to document about the danger of contamination. Here is a side step into chemistry.

There are thousands of PFAS chemicals, but they are all categorized as either “long-chain” or “short-chain” based on the number of carbon atoms they contain. Long-chain PFAS chemicals contain more than 8 carbon atoms; any PFAS chemicals containing fewer than 8 carbon atoms are considered short-chain. All PFAS are very persistent in the environment and in human bodies.

Long-chain PFAS, like those used in firefighting foam, have been phased out of use in the United States and Europe because of their known toxicity to humans and the environment. Long-chain PFAS chemicals, sometimes called “forever chemicals,” build up in the body over time and have been associated with various forms of cancer.

Short-chain PFAS chemicals are currently used in the apparel industry as a replacement for the now-disfavored long-chain PFAS chemicals. There are no long-term studies about whether short-chain PFAS chemicals are safer for consumers. In fact, there are studies to suggest that they pose health risks that are like those posed by long-chain PFAS.

In 2019, the U.S. Department of Health and Human Services’ National Toxicology Program found that short-chain PFAS have the same adverse effects as their long-chain counterparts. PFAS exposure to pregnant women and babies appears to pose particular risk to metabolism and immunity. In the absence of more re-assuring evidence, the Green Science Policy Institute has recommended that manufacturers:

• discontinue the use of PFAS where safer alternatives exist;
• label products containing PFAS; and
• encourage retailers and individual consumers to avoid products containing or manufactured using PFAS whenever possible.

 

Wandering Toxins

Even short-chain PFAS chemicals are known to migrate during laundering, which means that clothing treated with PFAS may contaminate non-treated clothing. Washing PFAS-treated clothing also appears likely to release those chemicals into waterways. Once in the waterways, PFAS chemicals can contaminate drinking water, soil, wildlife, vegetation and can make their way into the agricultural food production.

Small Picture. Big Picture.

Dickens and the settlement that followed focus particularly on the pocketbook pain of consumers. It is certainly a bad thing to pay extra for a safe and environmentally-friendly product that really isn’t.

But the bigger picture of potentially pervasive environmental damage is more concerning. That is not addressed by this settlement and may be grist for a future lawsuit.