HOUSTON - Attorney General Ken Paxton’s use of consumer protection law in pursuing toxic tort litigation could prove financially beneficial and spread to other states, says one attorney.
Some states are wielding broad consumer protection laws to litigate toxic torts, and now Texas is moving to do the same, as Paxton has targeted several alleged wrongdoers through the Deceptive Trade Practices Act and is seeking civil penalties.
The DTPA, as used by the attorney general, does not require proof of actual damages.
Stanfield
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Texas has typically used the DTPA in consumer protection cases involving business fraud and other deceptive practices, says Craig Stanfield, a Houston attorney at Paul Hastings.
"Expanding the use to traditional toxic tort litigation is an interesting new approach and one with potentially outsized financial risk,” Stanfield said. “Given the potential financial benefits to states, this approach may spread among the states with similar statutory schemes."
Stanfield points to two recent examples which he believes likely foreshadow the state's broader use of the DTPA in toxic tort litigation.
Earlier this year, the state sued two long standing PFAS manufacturers but is not alleging damages. Instead, the suit claims these companies misled Texans regarding the safety of PFAS and that each act of deception is a violation of multiple parts of the DTPA.
The state seeks up to $10,000 in civil penalties per violation.
The Texas AG's office also has announced it is investigating a prominent food manufacturer for using food colors and preservatives in its products.
According to the state, the products are touted as "healthy" when in fact they use artificial colors and preservatives. Paxton said the state must put a stop to "companies' deceptive practices that are aimed at misleading parents and families about the health of food products."
Stanfield points out that while the state's public announcements discuss the health effects of food colors and preservatives, a DTPA suit likely would seek only civil penalties unrelated to any particular harm.
"Thus, it is a powerful tool against companies who the state believes have misled the public," he said.
Stanfield has written about the Texas AG's recent use of the DTPA in the toxic tort context on the Paul Hastings website.
Stanfield is a Houston-based trial lawyer in the Complex Litigation & Arbitration practice. He litigates commercial, product liability, environmental, construction and insurance recovery cases throughout the U.S., representing clients in the manufacturing, automotive, energy, construction, aviation, financial services, computer software and chemical industries, among others.