We are bombarded with countless abbreviations every day – CPPA, GLBA, MSRP, SARS and BPA, to name just a few. Time to add one more to the list. Per- and polyfluoroalkyl substances, colloquially known as PFAS, are a class of more than 4,700 chemical compounds, the components of which break down very slowly over time. PFAS are prevalent in products that are grease-, oil- or water-resistant – e.g., cosmetics, food packaging, textiles, furniture, nonstick cookware, carpets, etc. Because of their widespread use and their persistence in the environment, current testing may detect PFAS in water supplies, food products and even our bloodstreams. Given the ubiquity of PFAS, their potential health risks have already caught the attention of environmentalists, scientists, lawmakers and – particularly relevant for this article – the plaintiffs’ bar.
While the Environmental Protection Agency has been scrutinizing the toxicity of PFAS for decades, recent toxicity assessments of PFAS during the Biden administration have identified new carcinogenic risks, identified new PFAS chemicals (including short-chain, replacement PFAS) as toxic and significantly lowered toxicity thresholds for previously evaluated chemicals (including perfluorooctanoic acid). New scientific research and public concern have resulted in a flurry of recent legislative activity, including a February 2022 letter authored by 30 United States senators requesting funding for PFAS research and the introduction of state anti-PFAS bills aimed at banning PFAS in consumer products (including firefighting foam, food packaging, textiles, cosmetics and personal care products) or requiring special labeling in more than three dozen states, including those below.
- Maine (H.P.1113-L.D. 1503): Ban on PFAS in carpets and fabric treatments by Jan. 1, 2023, and in any product effective Jan. 1, 2030.
- Vermont S20 (Act 36): Ban on PFAS in firefighting foam, ski wax, carpets, rugs and stain-resistant treatments (effective July 1, 2021) and food packaging (effective July 2023).
- Connecticut, Public Act No. 21-191: Ban on PFAS in food packaging, effective Dec. 31, 2023.
- Washington (RCW 70A.222.070): Ban on PFAS in food packaging products, effective February 2023.
- New York (S8817/A4739C): Ban on PFAS in food packaging, effective Dec. 31, 2022.
- Minnesota H.F. No. 3180: Would prohibit the sale of upholstered furniture and textile furnishings that contain PFAS.
- California A.B. No. 1817: Would prohibit the sale of food packaging and textile articles that contain PFAS.
- New Hampshire H.B. No. 1422: Would require manufacturers to include a warning on any consumer products that contain PFAS and obtain written acknowledgment from retailers selling those products that they have been notified that the product contains PFAS.
Additionally, there has been an uptick in consumer class actions filed in the past few months targeting manufacturers whose products allegedly contain PFAS, including lawsuits against cosmetics companies L’Oréal, Shiseido and CoverGirl. These recent cosmetic suits allege violations of state consumer protection laws for claims that the products are “safe” and/or based on statements in environmental or social governance policies. To date, more than 2,000 lawsuits have been filed against firefighting foam manufacturers and PFAS chemical manufacturers, suits which have been consolidated in a multidistrict litigation in the District of South Carolina.
Although to date the class action litigation has mostly been “limited” to a few cosmetics companies, chemical manufacturers and the firefighting foam industry, we believe these lawsuits are just the tip of the iceberg and that this litigation trend is likely to spread to numerous other industries, including personal care products, plastics, paper products, waterproof and stain-resistant clothing, chrome-plating, textiles, automotive, and wax and polish products.
Therefore, product manufacturers that sell or have previously sold products containing PFAS should gauge their potential risks, including identifying issues from products liability, advertising and marketing, and environmental perspectives. These manufacturers should also closely monitor and review the scientific research being published to better understand and evaluate their potential exposure to future regulatory action and litigation, as well as to ensure their products are safe for their consumers. For better or for worse, based on the current legal and legislative trends, PFAS is an abbreviation that will not be going away anytime soon.