Litigation over so-called forever chemicals, or PFAS, found in water, packaging and even landfills is poised for a “new wave” as the U.S. Environmental Protection Agency is expected to issue more regulations following new research on how the substances affect human health.
Used for their flame-retardant and water-resistant properties, per- and polyfluoroalkyl substances have been the target of lawsuits brought against manufacturers such as 3M and DuPont in recent years. Generally, the suits have been filed by water districts and localities over groundwater contamination and for exposure to PFAS in firefighting foam.
But legal experts say they expect to see such suits expand into other areas and industries, as the chemicals are pervasively used in food packaging, cosmetics and clothing.
“These products were extremely useful, and they were useful for a lot of the same reasons that they’re so persistent. They’re highly soluble,” said Tom Waskom of Hunton Andrews Kurth LLP. “The things that made them useful are the things that cause concern.”
The reason litigation over the chemicals has been accelerating is because new research linking them to certain health conditions has been accumulating.
The C8 Science Panel, named for perfluorooctanoic acid or PFOA, was the first big study to link PFAS to cancer, developmental delays and in-vitro effects on fetuses.
Increased regulatory activity and forthcoming rules on contamination levels are also expected to spur litigation.
Lawsuits over PFAS have so far been brought by plaintiffs like local governments and homeowners against major manufacturers like 3M and DuPont, but attorneys expect to see suits brought against others not as directly involved in the manufacture of the chemicals.
Just as litigation over PFAS groundwater contamination is expected to keep growing, litigation over the chemicals in consumer products is expected to find new ground.
Focusing on economic damages claims could mean that a class action includes more members, as it would be a group of people who simply bought a product as opposed to those who bought a product and were allegedly injured by it.
Further, it could also be much more difficult to win medical monitoring damages based on claims alleging injury from a particular product, such as from eating a hamburger wrapped in a type of food packaging. That’s because PFAS are in so many different types of products.
If companies are using PFAS currently, they should find out whether a substitute is a viable option. If they are disposing of PFAS, they should also make sure their waste management company is ensuring the chemicals aren’t leaching into the environment.