Rebecca Tushnet

phthalates could be “ingredient” for purposes of falsifying “only natural ingredients”

April 20, 2026 4:46 pm

Wysocki v. Chobani, LLC, — F.Supp.3d —-, 25-cv-00907-JES-VET,
2026 WL 926713 (S.D. Cal. Apr. 6, 2026)

Wysocki alleged that Chobani’s Greek Yogurt had dangerous phthalates
in it. Phthalates are “a group of chemicals [the U.S. Food and Drug
Administration (“FDA”) has deemed to be used safely] in hundreds of products,
such as … food packaging, pharmaceuticals, blood bags and tubing, and
personal care products.” But plaintiffs
alleged that they were bad for people.

The court rejected various challenges to the pleadings,
including that the cited testing didn’t show that the actual product Wysocki
purchased actually contained phthalates because the tested products differed in
size (32 oz vs. 5.3 oz), which could reasonably affect phthalate levels, as
each size container calls for a different amount of #5 plastic. That is, under Wysocki’s
leaching theory, phthalate levels in the 5.3 oz product would likely be lower
than those detected in the 32 oz product. Moreover, half of the cited tests
detected no phthalates and the testing entity’s own caveat was that results
“may not be representative of actual product contents.” These were all factual
disputes, and plaintiff pled enough to get past Rule 9(b), with the exception
of one phthalate that was not specifically mentioned in the allegations about
testing. Allegations that phthalates readily leach into surrounding surfaces
and food and are commonly used as a catalyst to make the # 5 plastic container
that Chobani predominately uses for its products also helped.

The court rejected the argument that Chobani’s “only natural
ingredients” claims weren’t misleading because there was no allegation that
phthalates are used, or act, as ingredients in the products. But Wysocki
plausibly alleged that allegations of “only natural ingredients,” while
affirmatively disclaiming the presence of any “artificial flavors,” “artificial
sweeteners,” or “preservatives”, represented to her and other reasonable
consumers that the product is free of unsafe, unnatural, toxic substances, such
as phthalates. At the motion to dismiss stage, a reasonable consumer could
understand representations that use terms such as “100% natural” or “natural,”
modified by other terms connoting that it is “all natural,” to mean “that a
product does not contain any non-natural ingredients.” And “only” was just such
a modifier.

A reasonable consumer was also likely to interpret the
meaning of the term, “ingredient,” by its ordinary definition: “something that
enters into a compound or is a component part of any combination or mixture.” If
phthalates’ presence in the yogurt was shown, that would plausibly lead a
reasonable consumer to find that the yogurt’s ingredients include phthalates,
rendering “only natural ingredients” false.

It didn’t matter that phthalates aren’t on the ingredient
list; reasonable consumers don’t have to cross-check the ingredients list when
a claim is clear on the face of the product. (And here, the ingredient list
wouldn’t help!) Given the “only” representation, “even trace amounts of a
non-natural substance, like phthalates, would exponentially alter the
previously stated percentages, which in turn results in a misleading ‘natural’
claim.”

Chobani also argued that Wysocki failed to allege that the
levels of phthalates in the products render them unhealthy or unsafe to
consume. While some courts have required plaintiffs to allege the presence of
the alleged harmful substance, at a particular level, to support a
misrepresentation claim, that was a question of fact. Wysocki alleged that “natural
ingredients are one of the most important aspects of healthy food,” and that,
when food packaging does not contain the word “natural,” over half of reasonable
consumers assume the product must contain chemicals.” And she alleged a risk of
“unsafe levels” of phthalates, and that disruptions of the endocrine,
respiratory, and nervous systems can result from both high and low dose
exposure.

However, Wysocki’s partial omission theory failed: she
alleged literal falsity, not that a representation was misleading absent
further disclosure.

Chobani’s argument that it was insulated by Proposition 65’s
warning thresholds was premature. Prop. 65 provides that “no person in the
course of doing business shall knowingly and intentionally expose any
individual to a chemical known to the state to cause cancer or reproductive
toxicity without first giving clear and reasonable warning to such individual
where the amount exceeds the [agency-established] no significant risk level.” But,
pursuant to a statutory safe harbor, this duty to warn does not apply to
business operators when Prop. 65-regulated chemicals exposure levels are equal
to or less than the “no significant risk level.” And private plaintiffs who sue
to enforce its private right of action have to give pre-suit notice, an
unwaivable requirement.

But Wysocki argued that she wasn’t bringing claims under
Prop. 65, even though two of the alleged phthalates in the products are on the
Prop. 65 chemical list. Though Prop. 65 is concerned with cancer or
“reproductive toxicity,” she alleged endocrine disruption, developmental harm,
immunological and renal harm, and hormone disruption, “outside the scope of
Proposition 65.” Resolving this would require more factfinding than appropriate
at this stage.

However, equitable relief and express warranty claims were
dismissed.

from Blogger https://tushnet.blogspot.com/2026/04/phthalates-could-be-ingredient-for.html