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The forever frontier: PFAS trends can create new areas of focus for companies
2023 PRINDBRF 0564
• Practitioner Insights Commentaries
• November 3, 2023
(November 3, 2023) - Miles Scully, Todd Murphy and Britanny Jocius of Gordon Rees Scully Mansukhani LLP discuss trends in litigation toward bringing claims over PFAS forever chemicals against companies that did not manufacture PFAS, but where PFAS was used in their manufacturing process or was present in their products.
In recent years, mass tort litigation has shown increased focus on Per- and Polyfluoroalkyl Substances (PFAS), and perhaps more importantly, on new products, industries, and users of these substances that previously avoided such attention. As is often the case with mass and toxic tort litigation, the filer appetite for larger and more diverse groups of defendants has caused focus to shift to second, third, and fourth "tiers" of defendants, as primary defendants become insolvent and seek bankruptcy protections.
While manufacturers of PFAS chemicals and entities that have purposefully included PFAS in their products remain a primary focus, secondary users — and even companies that may not have been aware of the presence of PFAS in their products — are now at risk of becoming litigation defendants and the subject of catastrophically adverse verdicts. Companies can take lessons from these trends in order to focus risk mitigation resources and to avoid future threats.
There are thousands of known PFAS chemicals, with two — Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) — being subjected to the most attention in recent years due to their prevalence in the market.
As a group of manufactured chemicals that have been widely used in consumer products for almost a century, PFAS can be found in numerous places, including adhesives; commercial and consumer products with polymer coatings designed to resist heat, oil, stains, grease, and water; food packaging designed to repel and/or hold liquids; clothing manufactured to repel heat and flame; and insulation of construction products, such as the insulations of electrical wire.
The most dominant allegation regarding PFAS chemicals is that they break down very slowly in the body, allegedly leading to a risk of buildup over time. However, because most scientific studies utilize exposures of animals to very large amounts of PFAS chemicals, and since there are thousands of PFAS chemicals with varying effects and toxicity levels, it is challenging for scientists to accurately track exposure to humans, and even more difficult to assess a true correlation to health risks. Even the Environmental Protection Agency (EPA) has only recently turned focus to a nationally recognized standard for the presence of PFAS chemicals in drinking water.
The EPA is initiating actions under multiple environmental authorities — Resource Conservation and Recovery Act, Toxic Substances Control Act, Clean Water Act, Safe Drinking Water Act, and Comprehensive Environmental Response, Compensation, and Liability Act — to identify past and ongoing releases of PFAS into the environment at facilities where PFAS has been used, manufactured, discharged, disposed of, released, and/or spilled.
Manufacturers, distributors, and purposeful PFAS polluters are certainly the entities with the highest risk for adverse litigation. Specifically, PFAS manufacturers are becoming the target of litigation by states. As of 2023, 15 separate state attorneys general have brought legal actions against companies alleged to be responsible for PFAS contamination, most often seeking damages for the harm caused by PFAS pollution.
Despite this, PFAS lawsuits brought by individuals and classes are now trending toward the targeting of consumer goods manufacturers and sellers. These efforts often include fraud-based assertions, including claims for false advertising, consumer protection violations, and deceptive statements made in marketing. In other words, companies that did not manufacture PFAS, but merely utilized PFAS in their manufacturing processes, are therefore becoming targets of enforcement actions. These entities may not only be subjected to fraud and exposure litigation but also claims involving the creation of waste that may have contributed to the contamination of groundwater with PFAS. This contamination approach has the potential to affect a vast number of corporations.
While PFAS litigation over the last three years has seen increased focus on defendants in the cosmetics, food packaging, and feminine hygiene products industries, perhaps the most unexpected trend is against users of food packaging products.
For example, recent class litigation has included claims:
•That food packaging and labeling, touting environmentally friendly and healthy products, implies to consumers that extra care was taken to remove or avoid the use of chemicals, but testing showing trace levels of PFAS in the products indicated that the claims were false, misleading, or induced consumers to purchase products when the presence of PFAS in the products was not disclosed.
•That containers used by numerous fast food companies contained PFAS chemicals, and the failure to remove or warn against those substances led not only to exposure to PFAS chemicals but also to misleading customers.
Thus, litigation trends have revealed that even companies that unknowingly utilize products that contain PFAS chemicals may have significant liability risks. Improved availability of science and literature involving PFAS chemicals, and their effects are exacerbating company liability risks. This is especially true when companies are viewed as possessing the resources to perform such research or to seek out the safest component products in the market.
In short, companies can no longer plead ignorance as a viable defense to potential liability arising from the presence of PFAS chemicals in their products, even when those products are provided by another entity (e.g., completed product packaging purchased from a vendor). Companies are viewed as knowledgeable and responsible, and are thus at risk, from individual plaintiffs, classes, and municipalities.
Perhaps most importantly, trending targets are now companies that may not at all be involved in the product or chemical manufacturing itself, and the ability to direct liability to "upstream" manufacturers is quickly evaporating with increased bankruptcy filings and multiparty litigation where those upstream product manufacturers are also defendants.
How can companies use the emerging trends to reduce the risks associated with a chemical that is often described as "forever" and "everywhere?" First and foremost, companies must commit resources to fully understand every aspect of their product manufacturing and marketing chain. This includes a detailed understanding of packaging and component parts provided by subcontractors and vendors, along with required representations from those entities that the products they provide are free of PFAS chemicals.
Second, companies must develop a deeper understanding of how their products interact with these components, such as packaging. For example, foods and liquids can "pull" PFAS chemicals from food packaging.
Third, and perhaps most importantly, companies must be vigilant regarding the accuracy of the content of their product labeling. Representations that products are "safe," "natural," "tested," or "healthy," may be alleged as false or misleading in the event that PFAS chemicals are associated with those products or their packaging.
While the current litigation landscape may be troubling, it contains lessons for companies focused on mitigating risks prior to litigation.
Miles Scully is a regular contributing columnist on mass tort litigation for Reuters Legal News and Westlaw Today.
Miles Scully is a named partner of Gordon Rees Scully Mansukhani LLP and has served as first chair for dozens of trials and highly publicized verdicts. He represents public and private companies in litigation and regularly advises senior executives, boards of directors, and other clients on risk-mitigation strategies. He is based in the firm's Southern California offices and can be reached at [email protected]. Todd Murphy is a partner at the firm in its Chicago office. His practice is nationally based, and involves commercial litigation, mass tort defense, and professional liability matters, with a focus on complex, class, and multi-party litigation. He can be reached at [email protected]. Britanny Jocius is an associate attorney at the firm in its Chicago office. She focuses on defending clients in commercial litigation, employment law and mass tort litigation. She can be reached at [email protected].
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