AS (per- and polyfluoroalkyl substances) are a group of thousands of chemicals manufactured since the 1940s for use in consumer products and industrial processes. This article presents an overview of the PFAS phenomenon.
PFAS are very effective at doing what they do – for example, resist grease, oil, water, and heat, and put out flammable liquid fires such as fuel fires. Their useful properties have resulted in their use in, to name only a few, nonstick cookware; water-resistant clothing; cosmetics; coatings on carpets and upholstery to prevent stains; grease-resistant paper (think pizza boxes and other take-out food containers, for example, although the FDA announced this year that PFAS-containing grease-proofing substances for food packaging had ceased to be sold in the U.S.); and certain fire suppressants. However, nothing comes without a cost.
- Pervasive: Their common uses have led to PFAS being found in the environment everywhere around the world – including in the far Arctic reaches of Earth. They are ubiquitous.
- Pernicious: Scientists and doctors have found that PFAS bioaccumulate within organisms in the environment, and are toxic, including to humans. EPA has called PFAS “an urgent threat to public health and the environment.”
- Perpetual: Part of what make PFAS so useful in daily life is their durability – their extreme durability. Due to their tendency not to break down naturally in the environment, they have been termed “forever chemicals.”
PFAS’ pervasiveness and perpetuality, combined with the health risks they present, have led to extensive litigation (PFAS have been dubbed “the next asbestos” or “the next tobacco” by some), a sharp increase in regulation, non-stop news articles, and even a Hollywood movie starring Mark Ruffalo and Anne Hathaway (“Dark Waters”).
Litigation
With a mixture of factors like those above, litigation is sure to follow, and it has. To pick just a few instances, all of the following have been filed in 2024:
- Coca-Cola – A proposed class action over PFAS allegedly found in “Simply Orange” products. This lawsuit states that Coca-Cola’s use of such terms as “pure filtered water” and “all natural” in labels and advertising are rendered false and misleading where those products contain PFAS.
- BIC USA – A proposed class action for allegedly failing to disclose that PFAS are present in the lubricating strips on some BIC razors. The California plaintiffs learned of the presence of PFAS in BIC lubricating strips through a public records request to the State of Maine, following a Maine law requiring manufacturers of products sold in that state to submit information about intentionally-added PFAS. In what is certain to become a trend, plaintiffs’ counsel were able to mine publicly available PFAS disclosures and use that information to find deep-pocketed defendants to sue.
- Kimberly-Clark Corp. – A proposed class action claims that a Kleenex manufacturing facility is the source of PFAS in the environment.
- Johnson & Johnson – Sued over the alleged presence of PFAS in Band-Aids.
- 3M, DuPont, and others – Sued by Connecticut firefighters claiming dangerous levels of dermal exposure to PFAS through their protective gear manufactured and sold by those companies.
- Costco – A proposed class action claims that Costco’s Kirkland-brand fragrance-free baby wipes contain PFAS.
- The Hershey Company – A proposed false advertising class action claims that Bubble Yum bubblegum and its wrappers contain organic fluorine, an “indicator” of PFAS. Another proposed class action claims that the company’s Hershey’s Chocolate Bar, Hershey’s Kisses, Reese’s Peanut Butter Cups, Reese’s Pieces, and Almond Joy wrappers contain “alarmingly high levels” of PFAS.
- Edgewell Personal Care – Suit claims that Carefree menstrual liners contain PFAS.
Further, all of the following large PFAS settlements were reached or received court approval in 2024:
- 3M – $10.3 billion
- DuPont and related companies – $1.1 billion
- Johnson Controls – $750 million
- BASF Corp. – $316.5 million
Regulation
Regulations concerning PFAS have also proliferated. Below are just a few:
- Safe Drinking Water Act – In April of this year, EPA finalized PFAS drinking water standards applicable to all public water systems in the country – approximately 66,000 systems. EPA set the standard at a very low 4.0 ppt (parts per trillion) for two PFAS, even while saying that this level represents the lower edge of detectability, and that even at those levels, the two PFAS are not safe to humans (“[T]here is no dose below which either chemical is considered safe”). For perspective, consider that per EPA, in terms of time, 1 ppt represents 1 second out of almost 32,000 years. And keep in mind that, meanwhile, the CDC has reported that the “General U.S. Population” in 2017-2018 had 1,400 ppt and 4,300 ppt of those same two PFAS already in their blood.
- CERCLA – Two PFAS have been designated as “hazardous substances” under CERCLA, giving EPA additional enforcement powers and causing parties to worry not only about new Superfund sites due to the presence of PFAS, but whether old, closed Superfund sites could be resurrected. Further, environmental Phase I assessments will deem releases of, and the presence of, PFAS as Recognized Environmental Conditions.
- Toxic Substances Control Act (TSCA) – There is a new required one-time certified report to EPA of all PFAS that a party manufactured or imported in each calendar year from 2011 through 2022. Most companies are required to report by no later than January 11, 2026, and unlike some other reporting schemes, there are no threshold quantities, and the coincidental manufacture of PFAS as byproducts or impurities is in-scope.
- EPA National Enforcement and Compliance Initiatives (NECI) – EPA included “Addressing Exposure to PFAS” as one of six areas to receive its highest focus for the years 2024 to 2027.
Conclusion
This article merely scratches the surface of the PFAS phenomenon. For example, layered on top of the items discussed here, individual states are also crafting and enforcing PFAS rules and standards. With all of this activity, litigation, and dollars at play, PFAS matters, like PFAS themselves, are here to stay. UB Greensfelder is ready to help guide its clients – expect more PFAS updates going forward.
Mary Hofmann, David Meyer, and Bill Anaya contributed to this article.
