PFAS Defense
Paul Jacobi
PFAS lawsuits are becoming a significant liability concern for many companies. PFAS (Per- and polyfluoroalkyl substances) are found in numerous consumer and commercial products. They are great at providing resistance to stains, oil, and grease. However, they do not break down in the environment and are therefore known as “forever chemicals.” Further, they are highly toxic and have been linked to a number of major health concerns including birth defects, cancer, and cardiovascular disease.
Stricter Regulatory Standards
As a result, compliance standards are being set at very low levels by states and EPA. We are already talking about regulatory limits in the parts per trillion range that reflect a need to protect individuals. When I started in Environmental Law in 1976, we often referred to contaminant levels in the parts per thousand level. Since then, regulatory standards have decreased in some cases, to parts per million, parts per billion and now parts per trillion!
Increasing Litigation Risks
We have written numerous articles on regulatory issues with PFAS, and are now addressing litigation claims which could bankrupt companies under certain circumstances. This is becoming an even bigger issue now that PFAS (specifically PFOA and PFOS) are identified as hazardous substances under the Superfund. There are also now federal drinking water standards for PFAS.
Targets of PFAS Lawsuits
Cases may be brought against manufacturers of PFAS or companies that incorporate these substances into their products. Suits may also be brought against suppliers of PFAS contaminated drinking water or companies that simply sell products that contain PFAS to consumers.
EPA’s non-enforceable health-based drinking water goal is now set at zero. The Agency says that no level of PFAS exposure is without risk of health impacts. Although this is not a quantitative standard, plaintiff claims may reference this goal to justify causation and damages.
Legal and Product Liability Challenges
Cases are being filed not just on environmental grounds but on Product Liability and Unfair Trade Practices grounds. These claims are not just for known damages but for costs such as medical monitoring, even if no health effects or symptoms have been identified. The potential damages are enormous, and plaintiff injury firms have noted this as a target market.
Recommendations for Businesses
1) Don’t forget that causation still applies
2) Standards have changed and become generally more stringent. If an exposure is alleged from several years ago, check on the standards in place at the time of exposure
3) Medical monitoring is expensive and may exceed other damages. Such costs should not be allowed without actual injury and without an exceedance of an applicable standard.
These are just some of the potential concerns. Companies should have PFAS litigation on their radar.
Contact Us for More Information
If you have any questions or need support, contact us at your convenience. Our practice in this area is expanding, and we’re looking for experienced attorneys to join our team. If you have candidates in mind, please reach out to:
Pragati Ricci, Office Manager
📞 203.874.7110