Recent and emerging trends in PFAS litigation are raising significant concerns for companies across all stages of the product supply chain. Understanding the evolving legal landscape is essential to evaluating risk and developing effective strategies to mitigate potential exposure.
What are PFAS?
PFAS (per- and polyfluoroalkyl substances) are a group of thousands of man-made chemicals. PFAS have been used in industrial and manufacturing industries for decades because they have useful water, oil, and heat-resistant properties. For example, PFAS have been used in the production of nonstick cookware, carpeting, and firefighting foam because of these inherently useful properties. However, these useful properties have also led to potential environmental issues. PFAS have been found to be persistent, meaning they do not break down easily, and because of this persistence, PFAS can accumulate in the environment, including in living organisms. Exposure to PFAS in living organisms, including humans, can occur through inhalation, ingestion of contaminated food, soil, or water, or exposure to products containing PFAS.
Given the ubiquity of these chemicals over the decades since their creation, the Centers for Disease Control and Prevention estimates that 98% of Americans have some level of PFAS in their blood. Some studies suggest that accumulation and exposure to PFAS are linked to health effects, including immune system disruption, cancer, developmental issues in children, and more. Increased awareness of the risks associated with PFAS has led to increased regulations of the chemicals and legal challenges to their use.
Past PFAS Legal Trends
Earlier PFAS litigation often involved claims of environmental contamination, including wastewater and soil contamination. In Northwest Georgia, for example, local water providers brought claims against the carpet manufacturing industry over their alleged use of Scotchgard, Stainmaster, and similar products, which historically contained PFAS. The local water providers sought both monetary and injunctive relief to abate PFAS that allegedly leached into their water supplies, with hundreds of millions of dollars in damages claimed. One notable case resulted in a $279 million settlement between the City of Rome and various carpet and chemical manufacturers.
Additionally, a large multi-district litigation (MDL) regarding PFAS began in 2019. Those cases began with property owners’ claims of contamination from PFAS in the form of aqueous film-forming foams (AFFFs) used to extinguish fires. The MDL eventually expanded to cases tangentially related to AFFF, including claims against manufacturers that use PFAS. Notable defendants in the MDL include DuPont, 3M, Chemours, Corteva, and Kidde-Fenwall. These cases resulted in massive settlements, including a recent settlement that exceeded a billion dollars from 3M, Corteva, and DuPont.
As is clear from these examples, potential liability relating to PFAS use or contamination is enormous.
New PFAS Legal Trends: Consumer Product Greenwashing & Fraud
Recent lawsuits involving PFAS have targeted consumer fraud. These lawsuits claim companies are engaging in fraud when they market products as “environmentally friendly,” “clean,” or “natural,” despite tests allegedly finding the presence of PFAS in those products. These consumer fraud claims are referred to as “greenwashing” claims. Many of the recent lawsuits involving greenwashing claims are class actions claiming that a defendant knew these products contained PFAS due to testing, yet continued to fraudulently label them as “environmentally friendly,” “clean,” or “natural.” Consumers also claim economic injury because they claim that they would not have purchased the products had they known they contained PFAS.
The latest wave of PFAS lawsuits targets a variety of common consumer and commercial products. A class action filed earlier this year against Gore-Tex alleges the company engaged in greenwashing by advertising its waterproof outdoor apparel as environmentally sound despite containing PFAS. Another lawsuit targets diaper brand Coterie Baby for selling diapers containing PFAS despite advertising PFAS-free diapers. Apple is among several smartwatch makers sued in a class action for producing PFAS-containing wristbands advertised as safely manufactured. Food storage bag manufacturers and retailers were sued for advertising “compostable” bags that contain PFAS. Other commonly implicated products include food packaging and storage, cookware, cosmetics, hygiene products, baby products, waterproof or water-resistant clothing and gear, fire retardants, and insulations—and even consumer food products like bacon.
Because the presence of PFAS is nearly ubiquitous in consumer products, companies involved at any stage of the consumer goods supply chain should evaluate their PFAS risk.
For more information about how recent trends in PFAS litigation may affect your business, please contact Robert Alpert, Jeffrey Douglass, Justin Jorgensen, or Isabelle Hale.
