PFAS litigation is on the rise. The catalyst is the rapidly developing patchwork of proposed municipal, state, and federal regulations seeking to find and hold accountable PFAS users. State attorneys general are taking an increasingly active stance against PFAS. In parallel, the plaintiffs’ bar is advancing new types of PFAS suits, including state-wide class actions and greenwashing suits that target a wide variety of PFAS users. The damage claims often amount to hundreds of millions, if not billions, of dollars.
With a few potentially precedential PFAS cases on the horizon, it is important for PFAS users to monitor legal developments and have a litigation strategy in place in the event that they land on the growing list of targeted PFAS users (whether rightly or wrongly).The following outlines recent cases brought by state attorneys general and the plaintiffs’ bar, as well as their potential implications, and recent attention given to this issue by the EPA and the United Nations.
What Businesses are Impacted by PFAS?
Per- and polyfluoroalkyl substances (PFAS) – commonly known as “forever chemicals” – are a group of about 4,000 synthetic chemicals with a carbon-fluorine bond structure that prevents them from breaking down over time. They are widely used in consumer products (e.g., cookware, clothing, carpets, cosmetics, etc.) along with many aspects of the aerospace, automotive, construction, and electronics industries. PFAS may enter the environment as they are manufactured, used, or after a product with PFAS is disposed of. Today, because PFAS do not break down, they are widely present in soil, water, air, people, and animals. They are now increasingly the focus of rapidly evolving litigation – as fueled by contemporaneously developing municipal, state, and federal regulations – and are expected to create liability for not only the traditional PFAS users, but also a broad scope of new alleged users across many industries not historically associated with PFAS contamination liability.
State Attorney General Suits
State attorneys general have become increasingly active in filing suit against PFAS manufacturers and users. At least seventeen attorneys general have filed suits against manufacturers for their role in contaminating state natural resources. These lawsuits generally allege that manufacturers knew of the risks associated with PFAS, and thus should be liable for the resulting environmental contamination and cleanup. Alleged damage claims have been in the billions.
Some recent examples:
- In March 2023, the Maine attorney general filed two lawsuits against DuPont and 3M on the basis that the manufacturers knew of the risks PFAS posed to both human health and the environment. Maine is seeking “all costs to investigate, clean up, restore, treat, monitor and otherwise respond to the contamination of Maine’s natural resources.”
- Illinois is also rapidly filing its PFAS actions. In January 2023, Illinois filed a suit against 14 companies that sold products as consumer goods and for use in industrial processes that caused PFAS contamination in the state. The action seeks to recover for natural resource damage and “other monetary damages necessary for Illinois to continue identifying, monitoring, and remediating” contamination, in addition to injunctive relief against the companies.In March 2023, Illinois filed suit against certain companies for the improper handling of PFAS which resulted in ongoing contamination around that company’s facilities. In April 2023, Illinois filed a suit alleging that manufacturers of aqueous film-forming foam (AFFF) were aware their products were dangerous to human health and the environment, yet continued to manufacture AFFF while misleading their customers, the government, and the public about its toxic properties. It alleges widespread contamination and damages to the state’s natural resources in excess of concentrations noted in state health advisories.
- Other states, including Michigan, North Carolina, Colorado, and Wisconsin, have joined the firefighting foam MDL which similarly alleges that Anchormanufacturers ofAFFF are liable for PFAS exposure of both firefighters using the foam and people who have consumed drinking water contaminated with PFAS from the AFFF. As of March 2023, the MDL includes over 4,000 pending cases, and bellwether trials are expected to take place this year.
- In November 2022, California’s Attorney General filed suit widely targeting manufacturers that use PFAS in products such as food packaging, nonstick products, water-repellant textiles, and beauty products. The claims allege that manufacturers intentionally covered up the human and environmental impacts of PFAS. While other states have focused on PFAS and PFOS, the California suit includes products containing five other types of PFAS: PFBS, PFHxS, PFHxA, PFHpA, and PFNA.
Lawsuits are not the only way that state attorneys general are involved in the push for stricter PFAS regulation. This February, a letter was submitted to the EPA by attorneys general from seventeen jurisdictions, including Pennsylvania, Massachusetts, Arizona, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Michigan, New Jersey, New York, North Carolina, Oregon, Rhode Island, Wisconsin, New York, and the District of Columbia. The letter expressed thesupport of the attorneys generalfor the EPA to finalize its recently proposed PFAS rules and called for a standardized definition of PFAS to include those discovered in the future.
Other Forthcoming Government Challenges
In a move that may bring international attention to the issues surrounding PFAS, on April 27, 2023 the North Carolina organization, Clean Cape Fear, formally requested that the United Nations Special Rapporteur investigate the implications of “an environmental human rights crisis [in the state] involving pervasive human exposure to [PFAS] . . . from a Chemours manufacturing plant.” The 38 page letter alleges violations of the following rights recognized by the UN: the right to clean, healthy water; the right to bodily integrity; the right to life, health, and life with dignity; the right to a clean, healthy, and sustainable environment, the right to information, and the right to access to justice and an effective remedy. Although a determination by the Special Rapporteur would not be legally binding in the US, advocates note that an investigation would considerably pressure both the government and Chemours.
The EPA shows no signs of slowing either.Most recently, in April 2023, the EPA announced it is seeking public comments about whether to initiate regulatory action that would designate an additional seven PFAS, precursors, and certain PFAS categories as hazardous substances under CERCLA. This is an additional action beyond last September’s NPRM similarly designating PFOA and PFOS. These actions foreshadow a growing patchwork of new PFAS regulations being developed in conjunction with the state attorneys general with a commitment to continue pursuing PFAS litigation under these new rules.
The Plaintiffs’ Bar
The Plaintiffs’ bar has also capitalized on and expanded the scope of PFAS litigation in the form of consumer class actions targeted at various products containing PFAS. While most of these lawsuits are based on false advertising and failure to disclose claims, there is a possibility that personal injury claims will follow.
PFAS suits are now reaching far beyond manufacturers that are alleged to have directly contaminated the environment. Paper companies, cosmetic businesses, packaging producers, retailers, and fast food and grocery chains have all been the subjects of recent PFAS litigation. This litigation has included both consumer class actions and contamination cases.
- Fast Food: In April 2023, McDonalds had its motion to dismiss denied in a consumer class action suit alleging its food packaging contains PFAS. After a Consumer Report test of 24 restaurant and food chains revealed high PFAS levels in food packaging, consumers alleged that McDonalds misrepresented the safety of its products and use of PFAS on its website, in media statements, and in SEC filings. Burger King is involved in a similar lawsuit, and the breadth of the Consumer Report testing suggests that more are yet to come.
- Cosmetics:Cosmetic companies, such as L’Oreal, Cover Girl, and Coty, Inc., have been named in various consumer class actions alleging that they intentionally failed to disclose the presence of PFAS in waterproof mascara products. This failure to disclose, coupled with claims that the mascara products are safe and effective, lead consumers to claim they suffer financial losses by paying premium prices.
We expect an array of new and novel defendants to be brought into forthcoming PFAS litigation as avenues to claim liability are discovered in the products and by way of the new regulations.
State-Wide Class Actions
New high-exposure PFAS suits are now surfacing in the form of class action lawsuits on behalf of nationwide and statewide classes of claimants.In Ohio, while denying a proposed nationwide class, the court certified a PFAS personal injury class of all of the state’s 11.8 million residents. The class seeks injunctive relief against manufacturers and distributors of PFAS in the form of defendant-funded medical monitoring for all Ohio residents with a certain level of PFAS in their blood and the establishment of a science panel.
Not only would the class be one of the largest ever, it would also have serious implications for standing and class certification. These implications would in part make it easier to bring large class actions against PFAS manufacturers and users, as well as expand damages beyond the cost of PFAS remediation. The Sixth Circuit has granted an interlocutory appeal of the class certification, and expressed some early skepticism in certifying the class within its grant of review.
PFAS also present fertile ground for new, creative lawsuits, including greenwashing suits. A greenwashing claim asserts that a company has mislead consumers by representing that its business or product is more environmentally friendly, socially impactful, sustainable, or healthy than it actually is. Not only can greenwashing expose a company to consumer class actions, but it could also result in an FTC enforcement action.
Some recent examples:
- In January 2023, Tom’s of Maine was named as the defendant in a consumer class action suit on the grounds that the mouthwash it markets as “natural” contains multiple PFAS at material levels. The plaintiffs brought suit under the California False Advertising Law, California Unfair Competition Law, and Illinois Consumer Fraud and Deceptive Business Practices Act. The “natural” claim, according to plaintiffs, is false and misleading, and induced consumers who place a premium on natural products to purchase Tom’s mouthwash.
- In October 2022, REI was sued in a proposed consumer class action alleging that, in light of undisclosed PFAS in its products, REI marketing itself and its products as environmentally friendly and sustainable was false and misleading.
Parties using newer PFAS may be particularly susceptible to greenwashing suits if it markets a product as “PFAS free,” when it reality the product is only free of PFOA and PFOS, older PFAS known to be harmful, but still contains some other kind of PFAS.
PFAS litigation is gaining momentum.Businesses potentially exposed to these claims need to prepare, not based upon past perceived exposure to PFAS liabilities, but based upon forthcoming regulations and the trend by state attorneys general and the plaintiffs’ bar. Companies implicated in PFAS litigation have several litigation strategies and case management options to choose from. Some companies may choose to aggressively defend cases and form a reputational deterrence to being named in such lawsuits. Others may take a workers compensation approach to settlement – i.e., pay relatively nominal amounts irrespective of merits in every case.Others may simply monitor cases especially where they are not the central focus.Regardless, companies must be prepared for the ever-changing landscape.