Over the past few years there has been an increase in consumers asking: “What is in the products I am purchasing and using? What do these vague labels actually mean? And are these marketing claims actually legitimate?” The rise in this consumer concern? The access to improved chemical testing and the increase in the finding of PFAS or ‘forever chemicals’ in many of our everyday-use products such as baby products, food containers, furniture and even our undergarments, specifically period products.
No matter which products are used (tampons, pads, cups or underwear) all period products are used near or in highly absorptive and sensitive parts of our bodies. Recently a report surfaced that accused the underwear brand Thinx of having PFAS in the lining of its sustainable and organic period products. Read, right next to that delicate area. However, while the idea of forever chemicals and plastics making their way into our intimates is disturbing, this lawsuit against Thinx isn’t about the potential harm of the products, but rather, it’s focused on Thinx’s misleading advertising.
The LAWSUIT
Here’s a brief synopsis of Thinx and the class action lawsuit against them. In 2020, an article by a journalist at the Sierra Club, a nonprofit environmental organization, reported that through independent testing, PFAS were found in both of the Thinx products that were tested. Now, there hasn’t been significant testing to determine just how much PFAS can be absorbed through contact via the skin, but it is safe to say it is not zero. The EPA counts acceptable levels of PFAS in water between 0.004 and 0.02 parts per trillion. The level of PFAS found in the lining of the crotch of the Thinx underwear were 3,624 parts per million and 2,053 parts per million. This number is high enough to suggest that these toxic, forever chemicals were intentionally added.
Through independent testing, PFAS were found in both of the Thinx products that were tested.
As a result of these findings, lawyers seized an opportunity to sue Thinx in the name of misrepresentation – as Thinx claimed that its products were non-toxic. While this false claim came from Thinx, the brand was able to hide behind the false legitimacy of an Oeko-Tex certification. However, an Oeko-Tex is a paid certification program that essentially is a form of greenwashing, as brands are attempting to pay into building sustainability credibility. To be fair to Oeko-Tex, during the certification of Thinx, they only tested for a few dozen types of PFAS at the time; however, the EPA has identified over 12,000 types of PFAS that can be found in our clothing. So, claiming that a product doesn’t contain harmful chemicals isn’t really reassuring when organizations are currently only testing for a fraction of a percent of these PFAs.
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“It was a combination of researchers and journalists who broke this open. It’s quite confusing for consumers, it took me many months of investigation to figure myself out what the heck was going on. For that reason, this should absolutely not be put on consumers to figure it out. Someone needs to protect us, someone who is not paid in some way by brands, like Oeko-Tex is,” says Alden Wicker, independent journalist specializing in sustainability and the author of the soon to be released book To Dye For: How Toxic Fashion Is Making Us Sick – and How We Can Fight Back.
Naturally, Thinx disputed the findings, but in June 2022, the brand agreed to settle the class-action suit and pay $5 million in damages to the plaintiffs. Additionally, with proof of purchase and limited to $21 per customer, Thinx is offering reimbursement for purchases made between November 12, 2016 and November 28, 2022. This is only a part of the cost of one pair from their classic collection which runs $25-$38. The $5 million suit and $21 reimbursement doesn’t come as a consolation of any kind when, according to Statista, parent company Kimberly-Clark reported an annual revenue of $20.18 billion in 2022.
The level of PFAS found in…Thinx underwear…is high enough to suggest that these toxic, forever chemicals were intentionally added.
Per a statement on the settlement website, Thinx denies all allegations made in the lawsuit and disputes all claims of doing anything unlawful. Thinx states that PFAS were never a part of the product design, and that it will continue to help ensure that PFAS are not intentionally added to the brand’s underwear during any stage of production.
Thinx denies all allegations made in the lawsuit and disputes all claims of doing anything unlawful.
Let’s remember that Thinx was not on trial for the use of PFAS, but rather the misleading marketing behind its products was. And this makes sense, because the brand’s marketing works. On the brand’s website and campaigns you see models of all different sizes, races and abilities. Thinx also has a dedicated page that focuses on its processes and manufacturing plant, MAS, based in Sri Lanka (and in their words, MAS is a global leader in ethical manufacturing). The page also features a video of the women who make the garments. The brand has a social impacts page and claims to have partnered with over 14 grassroots organizations that provide access to period products in underserved communities.
There is a mission page, an about page, a student discount page and a product safety page (which, unironically doesn’t seem to mention the lawsuit). Thinx uses keywords like, “worldwide impacts, sustainable solutions, community, donations,” and the list goes on. Here is an example pulled straight from their site. “Alongside our partners (and with your support!) we’re fighting for better access to sustainable period solutions, amplifying grassroots activism, and donating our undies and time. When you purchase Thinx, you’re helping give life to our programming and initiatives — thank you!”
EPA has identified over 12,000 types of PFAS that can be found in our clothing.
So this begs the question, how is a consumer supposed to see through this feel deceiving marketing rhetoric and greenwashing? Often, this is the type of messaging that we, as consumers, look for and encourage people to look for when vetting brands that align with sustainable and ethical values. And, much to my chagrin, this marketing worked on me. I was thrilled by the prospect of living more sustainably when it came to my cycle, and I own several pairs of Thinx. Granted, I have owned them for years, but if I had known about this lawsuit, about their misleading and deceptive marketing, would I have purchased those products? Of course not. The false advertising and cringe-worthy marketing alone would have swayed my purchase, not to mention the toxic chemicals next to my delicate bits.
The point here is…
“This is the first class action case that we are aware of to allege deceptive marketing practices stemming from the presence of PFAS in consumer products,” said attorney Erin Ruben, of Milberg Coleman Bryson Phillips Grossman, the firm representing the plaintiffs in the class action lawsuit against Thinx.
22% of tampons, 65% of period underwear and 48% of sanitary napkins, incontinence pads and panty liners tested contained PFAS.
But let us remember, Thinx isn’t the first menstrual hygiene product brand to contain toxic chemicals. There is a long history of chemicals being used in menstruation products. It wasn’t until recently, in the last ten or so years, that information about the ingredients and components of these products were made available.
Perhaps it comes as no surprise that the first period products were organic. This involved the use of sheep’s wool, cloth, grasses, cotton and moss as absorption methods. However, through the commodification and mass production of menstruation products, we are now finding that they are laden with toxic chemicals. Despite our reluctance to discuss period products because of the deep roots around menstrual taboo, these hygiene products are an integral part of health and cost of living for those that need and use them. Not to mention the often prohibitive cost and inaccessibility for many. It is estimated that the global menstrual hygiene industry is worth over $15 billion annually. While treated as a convenience product, period products are a necessity for performing daily tasks and responsibilities while menstruating.
“This is the first class action case that we are aware of to allege deceptive marketing practices stemming from the presence of PFAS in consumer products” – Attorney Erin Ruben
More recently, environmental and safety concerns about tampons and pads have emerged. Not only are consumers worried about the synthetic materials, bleaches, dyes, pesticides and PFAS leaching into their bodies from the use of tampons and pads, the applicators and packaging are none too friendly to the environment either and contribute to landfills. Consumer watchdog site Mamavation and Environmental Health News conducted a series of independent lab tests between 2020 and 2022. Their results showed that 22% of tampons, 65% of period underwear and 48% of sanitary napkins, incontinence pads and panty liners tested contained PFAS.
The use of PFAS helps to make the material in menstrual products more absorbent and stain resistant. So removing PFAS and replacing them with more sustainable alternatives should be fairly easy, right? Oh, if only. Here is where we run into a common problem in the fashion industry, supply chain transparency. The problem is, brands often have no idea what the manufacturing process looks like or where the point of contact with the PFAS could be. Through these independent tests, it appears that the toxic chemicals are often in the raw materials the manufacturers are purchasing from the suppliers. That begs another question, what about the people making those products? What is their exposure to PFAS?
“It’s mostly men who profit off of lax chemical safety standards, and it’s women who suffer” – Alden Wicker
“We can’t say that PFAS was intentionally added in a malicious way,” says Alden Wicker.” More likely a factory offered water repellency to Thinx, or Thinx asked for it, and they got it, without most people in the supply chain or the brand realizing that the only way you get that is through perfluorinated chemistry.”
Wicker goes on to say that the brands and manufacturers are most likely ignorant to the harmful additions introduced by the chemical companies, as many were creating a false narrative that short-chain PFAS was safe.
“Not sure if they honestly believed that or if their jobs depended on believing it. So in short, it’s mostly men who profit off of lax chemical safety standards, and it’s women who suffer,” states Wicker.
History of Toxicity
All of this leaves me wondering, how did we get here? This question keeps leading me back to misogyny and patriarchal oppression. And while these negative constructs around menstruation are fairly universal, certain societies honored and held menstruation in esteem.
For those of us that menstruate, we bleed for about 1,800 days over the course of our lives, which is approximately five years. So, for about five years our most sensitive parts are coming into direct and prolonged contact with increasingly unsafe products. The dangerous chemicals found in tampons, pads and period underwear range from synthetic coatings to pesticides and dioxins, to plastics and unknown fragrances and, of course, a range of PFAS. We know the skin is semi-permeable, and that vaginal tissue is far more porous than other skin. These chemicals being in menstrual products is alarming.
The dangerous chemicals found in tampons, pads and period underwear range from synthetic coatings to pesticides and dioxins, to plastics and unknown fragrances and, of course, a range of PFAS.
What’s more is that a common “workaround” is the suggestion to simply buy organic tampons and pads instead. But that really isn’t feasible for much of the population either. Perhaps unsurprisingly, certified organic period products are more expensive than their chemical-laden counterparts. Period equity, or period poverty, essentially not being able to afford menstrual hygiene products, affects nearly 22 million individuals in the US. Menstruating individuals are affected by poverty more than their male counterparts. However, it is particularly disproportionate when it comes to women of color.
For example, Latinas only account for 18.1% of women in the US, but account for 27.1% of the women living in poverty. In that same breath, Black women only make up 12.8% of the population and account for 22.3% of the women in poverty. Perhaps this disproportionate inequity towards women of color comes as no surprise as this is another example of systemic oppression. These stats only increase for transgender and non-binary individuals of color, many of whom are also affected by the unaffordability of menstruation products.
Often menstrual product users don’t know that their products are toxic because there is hardly any regulation surrounding these products. The FDA classifies these products as medical devices and currently only recommends, not mandates, that manufacturers inform consumers of the products composition. Meaning it is on the brand to disclose the presence of chemicals, which doesn’t sound like a solid business model nor great marketing tactic when selling a product to consumers. But even then, if a brand were to admit the toxicity of its products and list the chemical composition, it is still hard for a consumer to understand which chemicals are toxic and the levels of toxicity.
“Women are increasingly struggling with infertility (and PFAS is an endocrine disruptor) and when they struggle to conceive in a heterosexual relationship, even if the man also has fertility problems, it’s the woman who has to go through painful interventions,” comments Wicker. “Women are more likely to have an autoimmune disease than men. And the people who make all of these decisions – fabric mill and dyehouse owners, chemistry experts at brands, chemical company executives, people who work at toxicity certifications and labs – are all men. All of them.”
We Deserve Better
The bottomline is that people that use menstruation products have the right to know what is in those products. We have a right to make informed healthy choices. And not just for ourselves, but for the planet as well. Thinx, like so many brands before them, had an opportunity to own its mistakes and lead by example to make things right. But instead Thinx chose the easy way. Because too often we see within the fashion industry, in any scope, changing or altering a production line is far more work than willing it away with pretty marketing, advertising, or a civil suit payout.
Vulvani, via Wikimedia CommonsWhat adds even more insult to injury for the consumer is that advertising and marketing budgets are so massive and inflated that they often can cover production line revamping. But sadly, and what is overwhelmingly evident in the Thinx case, is that we cannot make brands care about its consumers’ health, misleading claims or the environment through a settlement that allows a brand to continue with business as usual. We need more than a slap on the wrist and a payout that a holding company won’t even know they are missing, or a consumer reimbursement that doesn’t even cover the cost of one pair of underwear purchased. It’s not acceptable, or at least it shouldn’t be.
And while all of this may seem depressing, there is always hope. Yes, the federal government currently does not require PFAS content in product labels, but some states are taking matters into their own hands. In 2019, New York state passed a law that requires companies to list all substances added to period products. California quickly followed suit and in 2020 issued measures of their own. But, until our federal government pulls rank and stands up for the people, over half the population will be casting lots over one of the most intimate consumer decisions they could ever have to make.
Remake reached out to Thinx for comment. The brand did not respond.
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