AGG litigators David Marmins and Morgan Harrison authored an article published by IndustryToday explaining the increasing risk of litigation and liability for manufacturers related to the long-standing practice of using per- and polyfluoroalkyl substances (“PFAS”), otherwise known as “Forever Chemicals,” in products.
“If you manufacture goods that require repellence to water, soil, oil, and the like, then chances are you may be using — or have used — per- and polyfluoroalkyl substances in your operations,” David and Morgan said. “And if you have used PFAS in your operations, you could very well find yourself caught in the crosshairs of the next PFAS lawsuit.”
Developed in the late 1930s and early 1940s by chemists at DuPont and 3M, PFAS have been used in many products for daily use, such as clothing, makeup, carpeting, food packaging, cookware, and more. While the stability of PFAS has given so much applicable use, the stability also means the chemicals persist in the environment unless they are actively remediated. Reports from the CDC indicate there has been widespread exposure to the chemicals due to its residence in wildlife, groundwater, and surface waters, and early studies suggest that high levels of exposure can lead to adverse health outcomes, although the human health effects remain largely unknown and are the subject of ongoing research.
With such exposure and medical uncertainty, lawsuits against manufacturers using PFAS to make or package products have risen significantly. Plaintiffs have turned to a wide range of claims, including claims for trespass and nuisance (i.e., where the alleged harm stems from discharge of PFAS into the environment), products liability, violation of consumer protection laws relating to advertising and unfair trade practices, violation of the Clean Water Act, and violation of state-specific regulations and drinking water standards.
While the EPA is promising enforceable and very hard to meet standards related to PFAS no later than 2023 that will shift leverage dramatically toward the plaintiffs’ bar, David and Morgan offered some guidance while we await the EPA’s rule updates. “In the meantime, manufacturers that use PFAS in their products would do well to follow these PFAS litigation trends and stay abreast of the current administration’s efforts, in particular, to curb the use of PFAS. Depending on your company’s risk tolerance, it may be time to start thinking about how to phase PFAS out of your operations altogether.”
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