PFAS: The New Frontier of Product Liability

Jackson Otto


February 1, 2023

per- and polyfluoroalkyl substances (PFAS) are prompting thousands of environmental and personal injury lawsuits

Since the first lawsuit of its kind was filed in 1999, plaintiff’s attorneys have brought thousands of environmental and personal injury cases involving per- and polyfluoroalkyl substances (PFAS), colloquially referred to as “forever chemicals.” While this was once a niche practice area involving claims against a small group of chemical manufacturers, PFAS litigation has exploded to encompass manufacturers, distributors and retailers across nearly every industry. Indeed, data from Bloomberg Law indicates PFAS-related filings have surged from dozens in 2019 to hundreds in 2021 and 2022. Recent court and regulatory activities have brought even more attention to PFAS, promising an exponential rise in both the quantity of these lawsuits and the number of companies they will be brought against.

What are PFAS?

PFAS are a class of several thousands of synthetic chemicals first invented in the 1940s. The chemicals were prized for their durability and ability to form a film that repels both oil and water. PFAS were utilized in a broad array of industrial and consumer products, including textiles, furniture, cookware, food packaging, cosmetics, medical devices, and even in coatings used by the Apollo space program. In short, most products and equipment that required resistance to moisture, grease, oil, stains or wrinkles are likely to have at one time used PFAS.

Their insolvency in oil and water makes PFAS so useful, but it also makes these chemicals extremely slow to break down. It is from this resistance to natural degradation that PFAS derive the name “forever chemicals.” Due to their widespread use over many decades, some studies have found traces of these chemicals in soil, water systems and livestock. According to a CDC study, the majority of people tested over the past 20 years have some level of PFAS in their system. The health effects of PFAS exposure are still being studied, but plaintiffs contend that increased PFAS levels can interfere with hormones and the immune system, negatively impact fertility and physical development, and increase the risk of certain cancers.

PFAS Litigation and the AFFF MDL

The majority of the litigation surrounding PFAS to date revolves around their use in aqueous film-forming foams (AFFFs). AFFFs were created in the 1960s in conjunction with the U.S. military to fight fires caused by oil, gasoline and jet fuel that water cannot extinguish. These firefighting foams work by forming a film over ignited liquid fuel that smothers it and prevents reignition. AFFFs are routinely used by military bases and airports for both training and emergency response.

Plaintiffs in this litigation include individuals, property owners, utility companies, and state and local governments. They allege that, either after use or due to improper storage and disposal, AFFFs would run off into local water tables. They claim this caused personal injuries and property damage, and necessitated costly remediation projects. While some of these claims have been settled individually, most recent cases have been consolidated into a multidistrict litigation (MDL) in the U.S. District Court for South Carolina. The MDL In re: Aqueous Film-Forming Foams Products Liability Litigation currently contains over 2,700 separate cases and none have gone to trial thus far. However, last year, Stuart v. 3M Company, et al. was selected as the bellwether trial to be heard by a jury. The case is being brought on behalf of the municipality of Stuart, Florida, and will be tried in June. The outcome of this case will greatly shape the MDL, as well as the future of AFFF litigation generally.

The EPA Widens the Field

The Environmental Protection Agency (EPA) recently stepped up its regulation and tracking of PFAS other than AFFF. Last year, the EPA issued UCMR 5, a rule that added 29 PFAS to the list of substances that community water systems must monitor under the Safe Drinking Water Act. More recently, the EPA proposed amendments to the Toxic Control Substances Act (TSCA) that would require companies of all sizes to retroactively report information regarding PFAS in their products.

The proposed TSCA Section 8(A)(7) would apply to any company that has imported, produced or manufactured PFAS or a product containing PFAS since January 1, 2011. These companies would be required to report to the EPA: the specific types and quantities of the chemicals used; the manner in which the product and any byproducts were disposed of; the number of individuals exposed to these products and the duration of such exposure; and information regarding each chemical’s impact to the environment and human health. Aside from certain trade secrets, the bulk of this information will be made publicly available.

Aside from the staggering volume of information demanded, the proposed rule is also notable because there is no threshold triggering the reporting. Any company that imported or manufactured a single product over the past 12 years that contained any one of the thousands of PFAS chemicals would be subject to these requirements. There is no doubt that the publishing of these reports will spark a firestorm of new filings by plaintiff’s attorneys. The proposed rule is expected to be finalized and published this year.

The Future of PFAS Litigation

State regulators have taken the lead in expanding PFAS scrutiny beyond chemical manufacturers and firefighting foam. On September 29, 2022, California Governor Gavin Newsom signed Assembly Bills 1917 and 2771 into law. These statutes prohibit the manufacture, distribution or sale of PFAS-containing textiles and cosmetic products, respectively, effective January 1, 2025. In 2021, Maine passed a more sweeping law banning PFAS in all new products, but it does not come into effect until 2030. Other states such as Hawaii and Colorado have also passed laws banning the use of PFAS in specific product categories.

Plaintiff’s attorneys have wasted no time in bringing novel PFAS lawsuits against companies operating in all of these sectors. Cosmetics companies such as Coty, L’Oreal, Shiseido and Burt’s Bees are facing suits in California and New York over alleged use of PFAS in certain waterproof makeup lines. McDonald’s and Burger King have been sued in multiple states after testing by Consumer Reports indicated the presence of PFAS in their food packaging. Class action lawsuits have been filed against grocery stores for alleged use of PFAS in packages on their shelves, cookware companies for PFAS in nonstick pans, and apparel companies for PFAS in their coats and boots.

As PFAS litigation expands, companies must examine their own risk and seek to minimize it before these new requirements come into effect and their businesses are the subject of a class or regulatory action. A good first step is to perform a materials inventory by working with relevant internal teams to create lists of products manufactured, imported, distributed or sold since 2011 along with the known material composition of those products. For many companies, this may require contacting outside sources upstream, which can be time-consuming. Starting this process early will minimize its impact on normal business operations. The inventory lists can then be compared against relevant state and federal PFAS lists. The most important of these lists is the TSCA Substance Inventory, which encompasses the PFAS compounds recognized by the EPA as well as other chemicals of concern.

To complement the materials inventory, businesses should consider performing a geographic survey to itemize the states in which they have manufactured, imported, distributed or sold products since 2011. They should then work with legal counsel to determine which of these states have PFAS regulations, and determine what products from their materials inventory may be restricted under relevant laws. Bear in mind that some states define PFAS differently from the proposed federal rule, so organizations will need to monitor federal and state regulatory developments closely. Using the data they have gathered, businesses can then work with legal professionals to perform a litigation and regulatory risk analysis and assess what further actions may be necessary to minimize any liabilities.

Jackson Otto is a partner with the law firm Husch Blackwell LLP, where he focuses on litigation involving toxic tort and product liability claims.