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A brief primer on PFAS litigation: Trends and future disputes

John Galvin Suzanne Galvin Tim Briscoe August 25, 2022

Companies at every level of the stream of commerce now face exposure to PFAS litigation. PFAS started out only as an issue for the chemical companies that created it, but like an uncoiling snake, it now bites anyone in its path. Whereas once litigation was aimed solely at chemical companies that created PFAS, it now threatens downstream manufacturers who incorporate PFAS into products and, increasingly, retailers of those products (even a grocery store chain) and entities using—now, even those disposing of PFAS items—face potential risk. With more PFAS—related suits and regulatory activity in sight, companies are wise to take stock of the overall litigation environment and assess their potential legal risks before they find themselves embroiled in these suits. To that end, this article provides a high-level primer on the status of PFAS litigation, its trends, and where it is headed in the very near future. 

Introduction to PFAS 

There has long been a saying that oil and water do not mix. For centuries, this confounded scientists. When a material was made resistant to oil, water could dissolve it, and when made resistant to water, oil could dissolve it. During the space race of the mid-twentieth century, scientists had to develop materials for building spacecraft that could withstand both the heat generated by atmospheric entry and the corrosive effects of the ocean water where the craft landed. The solution was found in a class of synthetic chemicals in development since the 1940s: perand polyfluoroalkyl substances or “PFAS.” 

Fast forward to today: PFAS are found in innumerable consumer products to make those products resistant to oil, grease, stains, wrinkles, and other traits. Unfortunately, the same hardy chemical bonds that have given PFAS their incredible utility also cause them to break down slowly in the environment, with some PFAS taking a thousand years to dissipate (hence the popular moniker “forever chemical”).

There are thousands of distinct chemicals within the PFAS class. Some have short-chain carbon bonds while others have long-chain bonds. In general, the longer the chain, the slower the chemical breaks down. The common plaintiff’s theory is that two of the most problematic PFAS – PFOA and PFOS (both long-chain) – have been linked to damage to liver function, kidney and testicular cancer, cardiovascular risks, diminished antibody response to vaccines, birth defects, developmental issues and fetal mortality. Whether these ‘links’ establish causation and liability in any particular legal dispute is still being litigated in various courts across the country and in an MDL pending in South Carolina. The Supreme Court of New Hampshire recently certified the question of whether medical monitoring claims after alleged PFAS exposure are viable.

The current regulatory landscape

Some of the most significant regulatory movement and litigation to date has surrounded the historical use of firefighting foams containing PFAS, particularly on U.S. military bases. Through the 2021 National Defense Authorization Act, Congress prohibited the Department of Defense and its contractors from purchasing and/or using such foams. Congress has dozens of bills currently pending which would further regulation; some propose listing some combination of individual PFAS as hazardous substances under CERCLA. Others propose banning the use of PFAS in food packaging, cosmetics, clothing, and other consumer products.  

On the federal regulatory side, more immediate actions have already been taken by the EPA, which has been conducting studies and rulemakings to address PFAS. The agency is gearing up to impose numerical limits on discharges or emissions of PFAS through permits issued by EPA or state agencies under their delegated permit programs. EPA’s high-level, unified publication summarizing its plans and actions is the PFAS Strategic Roadmap, which builds on the prior administration’s PFAS Action Plan originally published in 2019. The EPA has also issued drinking water Health Advisories for PFOA and PFOS, which are concentration figures that fall below current laboratory detection limits (meaning, a concentration of PFOA or PFOS could exist in drinking water which EPA believes warrants an advisory, but which simply cannot be detected with current technology). Although non-enforceable, these Advisories will no doubt be utilized by plaintiffs to contend that drinking water sources have allegedly damaging levels of PFAS in them, even if a lab can’t confirm that the chemicals are in the water through direct sampling. 

EPA’s regulatory actions and proposals on PFAS span the entire spectrum of the federal environmental laws, including:

  • Safe Drinking Water Act monitoring requirements, health advisories, and the development of enforceable maximum contaminant levels; 
  • Clean Water Act discharge permit (NPDES) limits;
  • TSCA chemical inventory reporting and recordkeeping requirements;
  • RCRA corrective action requirements;
  • listing of certain PFAS as hazardous air pollutants under the Clean Air Act; and,
  • listing of certain PFAS as hazardous substances under CERCLA.

State legislators and agencies have also taken (often more expansive) action on PFAS. For instance, Illinois’ 2021 PFAS Reduction Act limited the use of PFAS-containing firefighting foams for testing or training, and, effective January 2025, bans the manufacture, use, or sale of such foams. The Illinois EPA has also issued its own statewide Health Advisories for PFAS in Illinois public drinking water systems and is currently developing drinking water maximum contaminant levels, which would be enforceable numerical limitations. New Jersey was the first state to adopt a maximum contaminant level for a PFAS chemical, specifically PFNA. Dozens more states have and will continue to adopt their own such laws on PFAS; for many individuals and companies (such as owners and operators of PFAS-impacted land and groundwater), these state-level developments are critical in assessing risks even in the absence of major federal action. 

PFAS litigation and settlements 

Litigation has coincided with an uptick in PFAS-related documentaries like The Devil We Know, the release of the movie Dark Waters, and media productions such as Vox’s coverage of PFAS issues in the Cape Fear River. Since 2005, there have been over 6,400 PFAS-related lawsuits filed in federal courts. DuPont alone has faced over 6,000 lawsuits, and 3M was sued on average three times a day in 2021. Some of these cases have resulted in massive settlements, including a $617 settlement between DuPont and plaintiffs from West Virginia and North Carolina, and an $850 million settlement between 3M and the Minnesota Attorney General to compensate for natural resource damages alleged by the state and fund groundwater remediation projects in the Twin Cities. Some of the biggest players have preemptively established contractual cost-sharing arrangements for future anticipated PFAS litigation, one as large as $4 billion.

But it is no longer just large chemical manufacturers who face PFAS lawsuits. The field of plaintiffs and defendants has expanded, particularly over the last few months, to include retailers of PFAS-containing apparel, restaurants that sell food in PFAS-containing packaging, and producers of PFAS-containing cosmetics. In California, a class action suit was filed against REI based on the allegations that the waterproof coats sold by REI contain PFAS. Even the grocery chain Kroger was sued for carrying products that contain PFAS. In Illinois and California, class action suits have been filed against McDonald’s and Burger King based on allegations that Big Mac and Whopper wrappers contain harmful levels of PFAS. Cover Girl, Shiseido, and Coty have all been sued for alleged use of PFAS in their water-resistant mascaras and other cosmetic products. It seems unending. 

Courts have sought to efficiently manage the tidal wave of PFAS claims by facilitating mediations, encouraging settlements, and forming a federal multidistrict litigation (MDL) for claims that have been filed throughout the country regarding PFAS-containing firefighting foams. The plaintiffs in that MDL seek damages for groundwater contamination, personal injury, and medical monitoring. This firm is involved in and paying special attention to the development of state laws on medical monitoring damages in PFAS cases, since this type of remedy, if not properly managed by litigants and courts alike, has the potential to become one of the most significant expenses in PFAS disputes. 

Looking to the future and preparing now

As the number and variety of lawsuits increase, companies are taking a harder look at their potential PFAS exposure and changing current practices to remove or mitigate the amount and types of PFAS included in their processes and products. This should already be the case for companies subject to TSCA or other regulatory requirements for reporting details about the specific PFAS that they produce, use, and/or store at their facilities, as well as for companies holding environmental permits which may soon include PFAS limits. Importers of PFAScontaining products should also be assessing whether reporting requirements apply to them and what information they made need to obtain from their international business partners. 

When Congress or the EPA begins listing PFAS as hazardous substances, CERCLA liability risks and the attendant claims for environmental response costs will increase substantially. Under CERCLA, there usually is no numerical threshold for the amount or concentration of a hazardous substance that can trigger cleanup liabilities, and therefore any detection of PFAS (including in comingled sources of pollution) could form the basis of an expensive CERCLA claim by the government or private parties. Accordingly, owners and operators of real estate potentially contaminated with PFAS, and those involved in related mergers and acquisitions, would be well-served to integrate PFAS risk assessment into their due diligence programs. 

Thompson Coburn has successfully navigated the risk of PFAS exposure with clients, assisting in both avoiding exposure and risk minimization, and managing complex litigation once the PFAS snake bites. It is clear this evolving area of litigation will continue to rapidly expand, until virtually every company is impacted. Assessing the risk and minimizing it now will put companies in the best position to ward off the future.

John Galvin, Suzanne Galvin and Tim Briscoe are members of Thompson Coburn’s Environmental Practice Group, and Ashvanika Dodwani is a Summer Associate at the firm. 

Disclaimer: This article is an informed impression or opinion of the authors. The articles does not reflect any view of Thompson Coburn LLP or any its clients.