In fall 2022, the Environmental Protection Agency (EPA) issued its long-anticipated proposal to designate per-and polyfluoroalkyl substances (PFAS) as hazardous substances. Known as “forever chemicals,” PFAS chemicals break down very slowly over time and have been linked to adverse effects on human health.
While a final ruling won’t be made until mid to late 2023, there has already been an influx of PFAS-related legislation – and litigation.
More than two dozen states have taken the initiative to protect residents’ health by banning PFAS in certain consumer products, issuing strict water-quality standards, or pursuing assessment and remediation efforts. The latter has led to cities and states suing polluters for compensation, with individual cleanup costs ranging from millions to a nationwide aggregate cost estimated at several billions of dollars.
As PFAS awareness grows, so will these litigation efforts. In Vermont, lawmakers gave residents the right to sue chemical companies for PFAS exposure. Additionally, 15 state attorneys general have sought damages for harm caused by PFAS pollution, including Minnesota, which settled with 3M Company for $850 million in 2018.
Shifts in PFAS Litigation
More recently, PFAS-related litigation has transitioned from companies that manufacture products containing PFAS to owners of businesses that use PFAS-containing materials. While the initial focus was PFAS contamination in water supplies, recent cases allege violations of consumer protection laws for failure to warn the public of PFAS chemicals in products.
This shift has led to an increase in PFAS litigation that includes personal injury claims filed by consumers, as well as lawsuits from local municipal entities. Both Baltimore and Philadelphia recently filed lawsuits concerning PFAS environmental impacts, alleging that major companies knowingly allowed city waterways and water systems to become contaminated with PFAS chemicals.
New research on the scope of PFAS environmental and health effects is driving higher rates of litigation against consumer product companies throughout their global distribution channels. Lawsuits in the last several years focused mainly on the alleged contamination of soil and groundwater as well as water utilities whose potable water sources were contaminated by PFAS.
Plaintiffs are also beginning to file lawsuits related to alleged PFAS use in consumer products. One example is a class-action lawsuit on behalf of consumers who purchased cosmetics products marketed as “clean and natural,” yet alleged to contain PFAS chemicals.
Numerous other examples exist in a variety of consumer industries. In most cases, the plaintiffs’ primary allegations surround the mislabeling of products, particularly when they are marketed as “free of harmful chemicals.”
Increased PFAS Awareness in California
While a nationwide issue, the State of California is at the forefront of PFAS litigation and regulation. On Jan. 1, 2023, a ban on the sale of nondurable food packaging containing PFAS went into effect in the state. The ban was contained in Assembly Bill 1200, which prohibits the sale or distribution of food packaging made of plant fibers if they contain PFAS.
This ban creates a set of regulatory issues unique to the California market—such as switching to PFAS-free packaging and manufacturers modifying paper and cardboard chemical processing—although increasing understanding of PFAS risks may drive businesses in other states to find alternatives to PFAS-containing materials. Lawsuits around the nation have increased visibility of these issues and will most likely continue to dictate regulatory direction.
EPA Takes a Stand
The EPA is not waiting on the hazardous materials designation to act. In December 2022, the agency filed a lawsuit against a Houston-based company that produces consumer containers for food, cleaning supplies, and more, asking federal courts to halt production.
The EPA states many of these plastic containers are contaminated with PFAS chemicals, likely from high-density polyethylene (HPDE) material, which seep into ketchup, olive oil, cleaning spray, and other commonly used products. The company treats plastic containers with a fluorinated gas to keep products from degrading, potentially creating PFAS as a byproduct.
The EPA requires companies manufacturing long-chain PFAS (compounds typically defined by having six or more carbons) to undergo a safety review, and the lawsuit alleges that the defendant failed to do so. The lawsuit was filed under a legal provision allowing U.S. citizens to sue makers of contaminants for alleged rule violations and lack of accountability.
Engaging a Third-Party Consultant
These shifts in litigation focus should be viewed as a growing trend as the PFAS landscape continues to evolve. It is important to partner with a third-party consultant skilled in PFAS regulatory response, compliance, and litigation support to safeguard your organization from PFAS contamination and its reverberating effects ahead of anticipated regulations.
Cameron-Cole, an ADEC Innovations company, specializes in assisting our clients with complex environmental liabilities. Our in-house environmental and regulatory experts provide technical support to clients addressing regulatory response and litigating against PFAS manufacturers. Contact us for a free consultation to discuss your current and potential future obligations and how to prepare for upcoming PFAS regulations.
