Litigation Risk For Perfluorinated Chemicals Continues To Mount

By William J. Walsh, Jane C. Luxton / Jun 25, 2018

High-stakes litigation against manufacturers and historical users of per- and poly-fluorinated chemicals (“PFAs”) continues to grow, moving beyond PFA manufacturers to numerous downstream products and uses.  Products and manufacturing operations that used PFAs include textiles, leather goods, paper and packaging materials, cleaning solutions, pesticides, firefighting foam, and many more.  These PFA uses have been directly and indirectly tied to groundwater contamination.  In recent weeks, headline-making state litigation and new government studies that may lead to much lower regulatory limits have raised the stakes, increasing risk for companies that historically used these chemicals.   Although there is considerable scientific uncertainty associated with human health and environmental risk from these chemical compounds, legacy users of PFAs (potentially dating back to the late 1940s) should immediately assess their exposure to new operational requirements, groundwater cleanup liabilities, and personal injury litigation.   

On June 19, 2018, New York State sued 3M Company, Tyco Fire Products LP, and four other companies, alleging that PFAs in firefighting foam contaminated drinking water and soil near numerous military bases and airports throughout the state where the foam was used in training exercises and other operations.  The state alleges product liability and public nuisance claims linked to potential health effects including kidney and testicular cancer, and seeks $39 million in restitution for provision of alternative drinking water and installation of a filtration system.  The lawsuit is the latest in a series of actions filed against PFA manufacturers and users, one of which resulted in DuPont’s payment of $671 million in multidistrict personal injury class actions in addition to $350 million for water filtration systems in affected communities. 

Meanwhile, on June 21, 2018, the federal Agency for Toxic Substances and Disease Registry (“ATSDR”) announced the availability of its new draft Toxicological Profile for PFAs for review and comment (due July 23).  The draft analyzes 14 PFA compounds and made news for a series of internal emails that reported federal government fears that the new assessment would require more conservative regulatory limits.  Without a doubt, a new federal health report that raises questions about the protectiveness of current exposure limits will only add to litigation risks relating to PFAs.

Concerns extend beyond groundwater contamination to other issues, such as exposures from food contact with cookware and paper and packaging.  The Food and Drug Administration (“FDA”) amended its food additive regulations in 2016 to “no longer provide for use” of three PFA compounds in contact with aqueous and fatty foods, based on an absence of data sufficient to calculate safe exposure levels.  Nonetheless, these compounds are still used outside the United States.  In an example of how this issue can quickly go viral, CNN picked up on the FDA report and claimed one third of fast food packaging could pose a risk. 

The continuing focus on risks from PFAs shows no signs of abating, and companies that may have used these chemicals, as well as those thst source products from countries where these compounds are still in use, should consider taking steps promptly to assess their compliance with existing regulatory limits, evaluate their legal vulnerability for past actions, engage in ongoing regulatory policy discussions, and actively monitor this rapidly evolving issue. 

Clark Hill attorneys are experienced in working with clients to develop effective legal strategies and advocacy approaches to address environmental regulatory and litigation risks. For more information, please contact Jane C. Luxton at jluxton@clarkhill.com | (202) 572-8674; William J. Walsh at wwalsh@clarkhill.com | (202) 772-0924; or another member of Clark Hill's Environment, Energy & Natural Resources practice group.