Preparing for the Legal Effects of PFAS Legislation and Litigation on Your Business

If a business involves any kind of manufacturing or sale of physical products, odds are that it will be impacted one way or another by developments in legislation or case law involving per- and polyfluoroalkyl chemical substances (collectively, PFAS). Industry sectors known to manufacture, utilize and/or be a source of PFAS include airports, military installations, petroleum refineries, bulk chemical transporters or storage facilities, landfills and wastewater treatment plants, textile and leather manufacturing facilities, and facilities that produce paper, paints, plastic [specifically high-density polyethylene (HDPE) containers and similar plastics (i.e., fluorinated polyolefins)], microchip and wire manufacturers. Many other industries will find themselves impacted in expected ways (e.g., packaging and containers) and unexpected ways.

In short, a very wide swath of the U.S. manufacturing, transportation and utility infrastructure sector either uses PFAS and/or is frequently associated with PFAS releases.

PFAS are popular in the manufacture of a wide variety of products because of their non-stick properties and ability to repel water and dirt. Therefore, PFAS are frequently used in coatings and products designed to resist heat, oil, stains, grease and water such as shoes, outdoor textiles (rain jackets, tents and more), firefighting foam, uniforms, non-stick cookware products, personal care products (cosmetics, shampoo, dental floss, nail polish), commercial household products (carpets, polishes, waxes), food packaging, semi-conductors and even the printing on products and packaging.

PFAS are extremely stable – another reason for their popularity – and also the reason why they are resistant to degradation in the environment and are found in drinking water and ocean water and bioaccumulate in the food chain (e.g., in beef, dairy and fish). The presence of PFAS in drinking water, the food chain and environment has led to thousands of lawsuits and in legislative initiatives at the federal and state levels, as well as ongoing health and toxicology studies.

Pending Litigation

Current PFAS-centered litigation is primarily focused on drinking water contamination, as well as PFAS exposure associated with firefighting, but it is expected that many other routes of exposure to PFAS will become the focus of litigation. The manufacturers, distributors and sellers of these PFAS-containing products will be included in the next wave of defendants.

Thousands of cases against manufacturers and sellers of PFAS – as well as manufacturers and sellers of PFAS-containing firefighting foam and firefighting turnout gear – have been consolidated in a federal court in South Carolina. The cases are fundamentally traditional product liability class actions, alleging, for example, defective design and failure to warn of the potential harm due to exposure to PFAS. Accordingly, ordinary requirements for the determination of liability are applicable (e.g., plaintiffs must prove that the product was defective, the product was used as intended, the plaintiff suffered harm, and the product caused the harm). As a practical matter, the cases are expensive to litigate because of the number of parties involved and extensive expert involvement. Therefore, product liability class actions often end in settlement.

Some of the South Carolina PFAS cases involve drinking water contamination claims brought by public water providers against manufacturers. Several of these cases have recently been settled to the tune of billions of dollars (although final court approval of the settlements is pending).

The next category of cases that has been separated out as a bellwether case for settlements or final litigation is narrowly tailored to cover personal injury plaintiffs who 1) have worked at specific military locations, 2) have been diagnosed with specific diseases (i.e., kidney cancer, prostate cancer, hypothyroidism and ulcerative colitis) and 3) allege that the diseases were caused by drinking water contaminated by PFAS at the military installation where they worked and, in some cases, lived.

There is no doubt that plaintiffs' lawyers are looking for more opportunities for product liability class action lawsuits of similar character, and manufacturers and sellers of multiple types of uniforms, personal care products and food and drink containers may be the next group of defendants finding themselves in court. Much is likely to depend on the outcome, whether by judgment or settlement of the current cases.

Federal and State Legislation

Meanwhile, many efforts have been initiated with respect to federal and state legislation to govern the management, use and clean-up of PFAS, and many laws have already been passed, while even more are in the works. At present, there is a nationwide patchwork of regulations, policies and initiatives – primarily focused on water, personal care products and protection of children – regarding disclosure, substitution and content limits. To illustrate the wide range of legislation and guidelines (passed or underway), consider the following non-exhaustive examples of recent and future PFAS legislation and standards:

• As of July 1, 2023, California has banned the distribution and sale of products for juveniles that contain regulated PFAS chemicals. The prohibition covers products "designed for use by infants and children under 12 years of age." This affects the sale of cribs, strollers and car seats, and manufacturers are required to use the least toxic alternative when replacing PFAS chemicals in their products.
• Minnesota has adopted policies to ban PFAS use in 13 products starting in 2025 (including in feminine hygiene products), disclose PFAS contents in any products by 2026, and restrict all unnecessary PFAS use by 2032.
• Washington has banned PFAS, effective in 2025, in cosmetics and personal care products. Many other states have adopted or are working on adopting similar bans.
• Oregon has adopted the Toxic-Free Kids Modernization Act that will authorize state authorities to regulate PFAS and other chemicals and require reporting of the same in products. Oregon has also banned PFAS in food packaging, effective on Jan. 1, 2025.
• Some legislators in New York are pushing for a prohibition on any use of PFAS in industrial plants.
• Maine has adopted a budget setting aside $70 million to be dedicated for a mix of grants to help farmers who participated in state-sponsored use of sludge that contained PFAS and other chemicals, as well as offer compensation for contaminated land and for medical needs and funding for scientific research.
• At the federal level, the U.S. Environmental Protection Agency (EPA) is working on preparing enforceable limits for PFAS in drinking water, and at least 17 states have filed comments to support the proposal. The EPA has also updated the list of chemicals subject to toxic chemical release reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and Pollution Prevention Act (PPA). This action updates the regulations to identify nine types of PFAS that must be reported pursuant to the National Defense Authorization Act (NDAA) for Fiscal Year 2020. This action was taken to conform the regulations to a Congressional legislative mandate, so it is a final rule effective July 23, 2023.
• Legislators in several states have initiated efforts to ban PFAS in firefighting substances. For example, Indiana has passed legislation that will prohibit fire departments from purchasing firefighter gear after June 30, 2024, unless it contains a permanently affixed label indicating whether or not the firefighter gear contains PFAS.
• A federal bipartisan effort to remove PFAS from firefighter gear is underway. The proposed PFAS Alternatives Act, if adopted, may authorize annual spending of $25 million per year for five years to support development of alternative materials. In addition, the National Fire Protection Association (NFPA) is working on revised standards and guidelines for protective gear that is expected to be released in early 2024. It is expected that the new standards will include verification processes and allow manufacturers to label firefighter gear as PFAS-free, if applicable.

Planning for the Future and Options

For companies manufacturing PFAS-containing products or products enclosed in packaging that contains PFAS, staying current with the developments in litigation and legislation will be important to satisfy future requirements for labeling, content levels or use of substitution products.

In preparation for disclosure requirements and to reduce litigation risks, companies that don't prepare their own packaging should reach out to their suppliers and ask for details about PFAS contents in the packaging, including details about PFAS in the print on the packaging.

Those for whom safe substitution products are readily available may find it prudent to shift to those substitutes prior to any mandates, subject to evaluation of current and applicable scientific research as to their quality. However, many manufacturers will find themselves in a situation where substitute products with functions similar to PFAS are not readily available and/or not fully vetted in terms of long-term safety, so staying current on applicable scientific research is recommended as well.

Conclusion

In short, staying abreast of the myriad legislative, regulatory and litigation developments concerning PFAS will soon be important for virtually every sector of the economy. For more information or any questions about the regulations, please contact the authors or another member of Holland & Knight's Environmental Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.