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March 20, 2024 Feature

Forever in Focus: Trends in PFAS Litigation and Regulations

Paul LaFata, Marina Schwarz, and Nathan Williams

Per- and polyfluoroalkyl substances (PFAS) have historically been used by many industries for many applications across the aerospace, biotechnology, construction, electronics, personal care, pharmaceutics, and textile industries. See Gluge et al., An Overview of the uses of per- and polyfluoroalkyl substances (PFAS) (2020). Environ. Sci.: Processes, 22:2345, 2349. PFAS have increasingly been the subject of litigation and regulatory scrutiny for the past two decades due to the ubiquity and persistence of certain PFAS compounds and allegations about exposure-based health risks. Spurred by news reports, political advocacy, documentaries, and popular media, PFAS impacts are widespread with industrial and commercial consequences. In response, many companies are actively working to assess and reduce or eliminate PFAS use in their business process.

Background

PFAS comprise thousands of chemical compounds known for their water-resistant and stain-resistant properties, as well as their stability. Id. at 2346. Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) are among the more well-known PFAS compounds, sometimes referred to as “legacy” materials. For decades, PFAS have been used in the production of a wide range of products, such as apparel, paper goods, upholstery, floor coverings, wire insulation, surface coatings, cleaning products, personal care products (like cosmetics, shampoos, and dental floss), and firefighting foam, among numerous others. Id. at 2349. Given the prolonged and widespread use of these chemicals, most Americans have had measurable exposure to PFAS, as demonstrated by data showing detectable levels of certain PFAS in the blood of most Americans. And, though there have been efforts to phase out reliance on PFAS and to identify replacements, regulators continue to investigate and evaluate the historical use of and continued exposure to many of these legacy chemicals. There is simultaneously growing regulatory and public scrutiny of materials that replaced these legacy PFAS, some of which are themselves PFAS.

The Present and Future of PFAS Litigation

Litigation related to PFAS began in earnest in the early 2000s and has since grown. Certain PFAS—so far primarily PFOA and PFOS—have been alleged to be capable of causing a variety of health outcomes and persist in the environment. In regions of the country where PFAS have been found in drinking water, groundwater, and soil, actions have been brought by exposed individuals, state attorneys general, and water authorities, asserting claims primarily against manufacturers of PFAS-containing materials, such as fluoropolymers (like TeflonTM) and firefighting foam, as well as in some instances local processors and waste management companies. Common legal claims include medical monitoring and personal injury based on exposure to PFAS in drinking water, diminished property values due to the presence of PFAS in soil and water wells, and remediation costs. Indeed, more than 6,000 cases involving claims primarily arising from the alleged use of PFAS-containing firefighting foam have been consolidated for pretrial proceedings in multi-district litigation. See In re: Aqueous Film-Forming Foams Prods. Liab. Litig., No. 2:18-mn-2873-RMG (D.S.C.). And multiple eight- and nine-figure verdicts and several high-value settlements (ranging from $17.5 million to over $10.5 billion) have garnered considerable attention, some receiving national media coverage. E.g., In re: E.I. du Pont de Nemours & Co. C-8 Personal Injury Litig., No. 2:13-md-2433 (S.D. Ohio); In re: Aqueous Film-Forming Foams Prods. Liab. Litig., No. 2:18-mn-2873-RMG (D.S.C.).

Given the perceived litigation successes and continued public scrutiny, PFAS litigation has expanded to additional industries further along the supply chain and across the product lifecycle. For example, in 2019, a putative class action was filed against two dozen carpet producers allegedly using PFAS in their manufacturing processes. Johnson v. 3M Co., No. 4:20-cv-8 (N.D. Ga.). In 2020, a roofing materials manufacturer was sued for the alleged release of PFAS into groundwater from the company’s facility, as well as from the properties where its products had been installed. Orange Cnty. Water Dist. v. 3M Co., No. 2:22-cv-01798 (D.S.C.). The plaintiffs alleged that the manufacturer, which used PFAS-containing roofing granules purchased from a supplier, “participates in the chain of distribution and stream of commerce of roofing materials containing PFAS.” In 2023, a class action complaint was filed against a Wisconsin paper mill allegedly using PFAS in its milling processes and disposing of PFAS-containing waste on nearby properties. Rougeau v. 3M Co., No. 3:23-cv-546 (W.D. Wis.).

One burgeoning area of litigation has emerged under fraud and consumer protection laws. Allegations typically include false or misleading advertising about a product being safe, natural, or environmentally friendly—claiming that a buyer would not have purchased or would have paid less for the products at issue and sometimes pairing those arguments with requests for medical monitoring. Defendants have included:

  • Retailers for marketing allegedly PFAS-containing, disposable plates and bowls as “compostable (Ambrose v. The Kroger Co., No. 3:20-cv-04009 (N.D. Cal.));
  • A feminine hygiene products company whose menstrual underwear allegedly contained PFAS and was marketed as “organic,” “sustainable,” and safe (Kanan v. Thinx Inc., No. 2:20-cv-10341 (C.D. Cal.));
  • Fast food restaurants are alleged to use PFAS-containing food wrappers and advertise food as safe (E.g., Hussain v. Burger King Corp., No. 4:22-cv-02258 (N.D. Cal.); Clark v. McDonald’s Corp., No. 3:22-cv-628 (S.D. Ill.));
  • A food company that used allegedly PFAS-containing packaging for its popcorn, which was advertised as having only “real,” “natural” ingredients (Richburg v. Conagra Brands, LLC, No. 7:22-cv-10941 (N.D. Ill.); Ruiz v. Conagra Brands, LLC, No. 1:22-cv-2421 (N.D. Ill.));
  • Beverage companies whose juice drinks allegedly contained detectable PFAS but were marketed as “all-natural” (Hernandez v. Wonderful Co. LLC, No. 1:23-cv-1242 (S.D.N.Y.); Lurenz v. Coca-Cola Co., No. 7:22-cv-10941 (S.D.N.Y.));
  • Personal care products companies that marketed their oral care products as “naturally sourced and naturally derived ingredients” or “pro-health” but allegedly contained PFAS (Esquibel v. Colgate-Palmolive Co., No. 1:23-cv-742 (S.D.N.Y.); Dalewitz v. Procter & Gamble Co., No. 7:22-cv-7323 (S.D.N.Y.)); and
  • Cosmetics companies that represented their mascara products to be “safe,” “appropriate for use,” or contain “ingredients from nature,” though PFAS was an alleged ingredient. (Hicks v. L’Oreal U.S.A., Inc., No. 1:22-cv-1989 (S.D.N.Y.); Gruen v. Clorox Co., No. 3:22-cv-00935 (N.D. Cal.)).

Product testing reports often trigger these lawsuits. Product testing has already been published on fertilizers, contact lenses, cosmetics, and artificial lawn turf and others. Experience and recent examples show that litigation (or regulation) often follows these disclosures.

PFAS litigation has also taken the form of lawsuits against shareholder actions, alleging failure to disclose material information about potential PFAS liability (In re 3M Co. Sec. Litig., No. 2:19-cv-15982 (D.N.J.)); actions related to insurance coverage for PFAS-related losses or liabilities (E.g., Admiral Insurance Co. v. Fire-Dex, LLC, No. 1:22-CV-1087 (N.D. Ohio)); actions against w ater authorities that distributed PFAS-containing water to consumers (Vincent v. Aquarion Water Co., No. UWY-CV23-6073975-S (Conn. Super. Ct.)), as well as actions by water authorities seeking damages and injunctive relief for water testing and data collection (e.g., City of Millington v. 3M Co., No. 2:20-cv-01034 (D.S.C.)); a class action seeking the establishment of a science panel to study PFAS (Hardwick v. 3M Co., No. 2:18-cv-1185 (S.D. Ohio)); citizen suits seeking to abate and enjoin disposal of PFAS-containing wastes (Tenn. Riverkeeper, Inc. v. 3M Co., No. 5:16-cv-01029 (N.D. Ala.)); and an action alleging RICO violations by companies involved in the disposal of paper mill waste and compost treatment (Ryan v. Greif, Inc., No. 4:22-cv-40089 (D. Mass.)).

Intensifying Regulatory Activity

On the regulatory front, PFAS use and exposure are governed by varying—and often conflicting— rules, guidelines, and advisories, as the federal government and many state governments have acted independently to regulate PFAS. Several states have adopted drinking water guidelines or limits for one or more PFAS. Other states are also considering or have proposed standards. While federal agencies, such as the Environmental Protection Agency (EPA), have increasingly sought to coordinate efforts and promulgate standards that may promote uniformity in some areas, navigating the increasingly complex and ever-changing PFAS regulatory space is growing more challenging and costlier. Federal agencies have been investigating PFAS for more than a decade. The CDC and ATSDR have been investigating potential associations between PFAS and health outcomes, and that work is expected to continue. See ATSDR, “Toxicological Profile for Perfluoroalkyls,” Draft for Public Comment (June 2018),; Press Release, “CDC and ATSDR Award $7 Million to Begin Multi-Site PFAS Study” (Sept. 23, 2019).

Yet, in recent years, under mounting public and political pressure, federal regulatory initiatives have accelerated in the areas of exposure limits, remediation, and reporting, as reflected by the following recent examples:

  • Drinking Water. In March 2023, the EPA announced a proposed National Primary Drinking Water Regulation for six PFAS (including PFOA and PFOS), setting enforceable maximum contaminant levels (MCLs) in drinking water. EPA, Preliminary Regulatory Determination and Proposed Rule, PFAS National Primary Drinking Water Regulation. For PFOA and PFOS, the EPA selected “the lowest concentration that PFOA and PFOS can be reliably quantified” with the current EPA-approved methods. Id. Once finalized, states must have a standard for public water systems that is no less strict than the MCLs. EPA, Proposed PFAS National Primary Drinking Water Regulation: Frequently Asked Questions and Answers (Mar. 14, 2023). The EPA is expected to finalize the MCLs by early 2024.
  • Federal Superfund. In early 2024, the EPA is expected to finalize its designation of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or the federal Superfund law. EPA, Proposed Rule, CERCLA Hazardous Substances: Designation of PFOA and PFOS (Sept. 2022). That designation would significantly broaden federal authority, including ensuring that releases are investigated and abated, that affected sites are remediated, and that response costs are reimbursed by potentially responsible parties (PRPs). See 42 U.S.C. §§ 9604, 9606, 9607. Once finalized, it would grant the EPA broad authority to direct a host of PRPs to investigate and remediate sites where PFAS have been found. See 42 U.S.C. § 9607. Airports, hospitals, farms, and performance clothing manufacturers—that is, owners and operators of sites where PFAS-containing materials were used, discharged, or disposed of at any point—could fall within CERCLA’s reach and, with it, face an increased risk of private litigation.
  • Waste Management. EPA is expected to propose a rule designating PFOA, PFOS, the GenX compound HFPO Dimer Acid (HFPO-DA), and perfluorobutane sulfonic acid (PFBS) as “hazardous constituents” under the Resource Conservation and Recovery Act (RCRA). If that rule is promulgated, EPA could deem solid waste containing a “hazardous constituent” to be “hazardous waste” after accounting for the constituent’s toxicity, concentration, environmental persistence, and bioaccumulation factors. 40 C.F.R. § 261.11. RCRA empowers EPA with “cradle to grave” control over hazardous waste, including enforcement powers such as inspections, testing, compliance orders, and penalties. EPA, Summary of the Resource Conservation and Recovery Act (last updated Sept. 6, 2023); EPA, RCRA Corrective Action Enforcement Authorities (last updated Apr. 14, 2023). As with a CERCLA designation, an RCRA designation could generate citizen suits to obtain injunctive relief, civil penalties, and company litigation costs. EPA has not disclosed a timeline for the proposed RCRA rulemaking.
  • Restrictions on New PFAS Use. In June 2023, the EPA issued a framework for reviewing new PFAS and significant new uses of existing PFAS before they enter commerce under the Toxic Substances Control Act (TSCA) New Chemicals Program. Companies must notify the EPA before manufacturing (or importing) a new substance or using an existing substance in a unique manner. Under the framework, the EPA “qualitatively” assesses whether PFAS is a persistent, bioaccumulative, and toxic chemical and evaluates the potential extent of exposure to the general population, consumers, and the environment. Based on its determination, the EPA could require further testing and assessment before the PFAS can be introduced into commerce.
  • Reporting. Owners and operators of facilities that manufacture, process, or use certain chemicals are required to track and report data on environmental releases, except for de minimis amounts. In a rule finalized in October 2023, the EPA eliminated this de minimis exception for over 180 PFAS. 88 Fed. Reg. 74360 (Oct. 31, 2023). Under the rule, suppliers may also be required to notify customers of the concentration of PFAS in their products. Also in October 2023, the EPA finalized a rule—colloquially called the “Billion Dollar PFAS Reporting Rule”—that requires current and historical manufacturers and importers of PFAS and PFAS-containing materials to report on uses, production volumes, disposal, exposures, and potential hazards. 88 Fed. Reg. 70516 (Oct. 11, 2023). Industry-wide compliance is estimated to cost approximately $850 million.

In 2021, the EPA established the EPA Council on PFAS to create and coordinate the agency’s strategy for addressing PFAS issues. EPA, Memorandum Regarding Per- and Polyfluoroalkyl Substances (Apr. 21, 2021). Just as the federal government has made PFAS regulation a key commitment, the same goes for enforcement actions. In 2023, the EPA—enhancing its enforcement efforts—executed the “first-ever federal Clean Water Act enforcement action” to address PFAS discharges, and EPA’s Office of Enforcement and Compliance Assurance announced plans to focus enforcement efforts on PFAS manufacturers and commercial users. Aug. 17, 2023, Ltr. from David Uhlman to EPA Reg’l Administrators.

While state governments follow the federal government’s lead in certain respects, states have taken independent action and assumed aggressive postures toward the chemicals. In California, PFOA, PFOS, and perfluorononanoic Acid (PFNA) have been listed as Proposition 65 chemicals – with three other PFAS under consideration for listing. OEHHA, Chemicals Known to the State to Cause Cancer or Reproductive Toxicity (Mar. 19, 2021). Under that law, businesses—including manufacturers, producers, suppliers, and distributors of anything from food to building materials sold or used in that state—to give notice where either chemical is contained in consumer products or their components, present in workplaces, or released into the environment, or face penalties of $2,500 per violation per day. Cal. Health & Safety Code § 2529.7. Some states are regulating PFAS beyond PFOA and PFOS. In New York, the Department of Health proposed maximum containment levels for PFNA, perfluorodecanoic acid (PFDA), perfluoroheptanoic acid (PFHpA), and perfluorohexane sulfonic acid (PFHxS). 44 New York Reg. 16 (Oct. 15, 2023). The proposal would also mandate giving notice to property owners where water contamination levels exceed statutory limits for nineteen other PFAS. In 2023 alone, states introduced around 200 new bills attempting to regulate or restrict PFAS use. For example, Connecticut’s environmental protection agency now requires entities to disclose historical industrial activities that could have resulted in the presence of PFAS in the soil or groundwater. The governor of Minnesota recently signed into law a comprehensive bill that not only calls for new water quality standards but, among other provisions, would require companies to report any products that contain “intentionally added” PFAS and phase out certain products containing PFAS from the market by 2025.

With that legislation, Minnesota joins nearly a dozen states that have passed laws to limit or ban the sale and distribution of PFAS-containing products ranging from food packaging to apparel and textiles, cosmetics, and children’s products. Indeed, Maine has undertaken to phase out PFAS in consumer products by 2030, except where the use is “unavoidable.” Maine DEP, PFAS in Products (last updated Sept. 12, 2023).

Using new and existing laws, state agencies have been active in investigating historic use and possible releases of PFAS, negotiating consent agreements, or commencing legal actions to cover (or recover) alleged damages, such as investigation and remediation costs. Roughly half of state attorneys general have filed lawsuits to recover damages related to historical PFAS releases, some claims resulting in nine-figure settlements or financial commitments. See Minnesota 3M PFC Settlement, supra; Press Release, Wolverine Worldwide’s Expanded Efforts to Address PFAS Approved by Judge (Feb. 20, 2020). These complaints typically allege that PFAS manufacturing or use resulted in the release of PFAS into the local or broader environment, thereby harming public property and natural resources. These actions and the passage of state laws to restrict the sale of PFAS-containing products reflect state officials’ growing interest in sources of alleged PFAS contamination. This expanded focus raises the possibility that additional industries will be targeted, particularly those involved in more widely used products that allegedly contain PFAS.

Internationally, there have also been efforts to regulate PFAS. For example, in February 2023, the European Union’s European Chemical Agency (ECHA) proposed severely restricting PFAS use. ECHA’s proposal would prohibit, subject to limited exemptions, the manufacture, use, or marketing of any substance, mixture, or article containing the sum of all PFAS exceeding 250 parts per billion or of any single PFAS exceeding 25 parts per billion based on a targeted analysis of PFAS.

There is no sign that the pace of regulatory action will decrease. As federal, state, and local governments and plaintiffs remain focused on PFAS, businesses and other stakeholders that manufacture or use PFAS should expect to face increasing risks of costs and potential litigation from private and public actors. In addition to the direct litigation and business risks, regulatory initiatives will likely have implications for private litigation. For example, the designation of certain PFAS as “hazardous” substances could be used to attempt to bolster allegations that injuries were caused by PFAS exposure and that certain remedies are therefore appropriate and necessary, even though regulatory designations are not based on scientific findings of causation and, instead, subject to a lower, precautionary standard. Further, guidelines for water treatment techniques promulgated by federal agencies may be seen as an industry standard. Moreover, as federal action spurs public awareness and pressure, states and local governments may seek to restrict or prohibit those operations involving any use or potential emission of any PFAS compound.

Growing Public and Commercial Attention

Individual companies and industries are taking action to mitigate litigation risk and implement diligence processes to comply with new regulations. Internal audits of historical and current usage of PFAS have become a more common practice among companies. Additionally, customers are requesting certifications regarding PFAS content. Regulatory diligence and commercial positioning drive these requests equally as companies seek to ensure they comply with state and federal laws and align their processes with business objectives. For example, with the public attuned to PFAS issues, “PFAS-free” labels have become an essential marketing theme for some companies that strive to position their products as safe and environmentally friendly. For some companies, though, confidentiality and trade secret considerations cannot be divorced from and may complicate commercial diligence.

Conclusions

These litigation, regulatory, and commercial trends signal a sustained and heightening interest in PFAS. Companies—particularly manufacturers—should plan for greater scrutiny of their current and historical business processes by regulators, customers, and the general public.

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Paul LaFata

Dechert

Paul LaFata is a partner at Dechert practicing in product liability, class action, and mass-tort litigation who advises and represents clients in PFAS litigation and risk management.

Marina Schwarz

Dechert

Marina Schwarz is counsel in Dechert’s product liability and mass torts group. She counsels various stakeholders on PFAS-related issues and regularly monitors, authors, and presents on developments in this space. 

Nathan Williams

Dechert

Nathan Williams is an associate in Dechert’s product liability and mass torts practice and focuses on complex product and environmental exposure liability.