On several fronts, 2023 was a year of increased attention to the use of per- and polyfluoroalkyl substances (PFAS). Chemical makers, including 3M and DuPont, reached massive, proposed settlements with public water utilities collectively totaling more than $11 billion, resolving litigation over contamination of public water systems. On the other hand, the dismissal of a broad personal injury class action reinforced the challenges PFAS plaintiffs have in pleading injuries and tracing injuries to specific chemical manufacturers. On the regulatory side, product manufacturers faced an array of new legislation and rules prohibiting use or requiring disclosure of PFAS content in certain products. Navigating regulatory compliance and litigation risk for PFAS use should remain a priority for manufacturers in 2024, even as many industries seek to mitigate or eliminate their use of the chemicals.
Litigation landscape
The most attention-grabbing headline last year was the proposed settlements reached between defendants (including 3M and DuPont) and public water utilities. The $1.19 billion settlement between public water utilities and DuPont, Chemours and Corteva was set for final approval in December, and a $10.3 billion settlement between 3M and the utilities is set for final approval in February. Yet PFAS makers still face lawsuits by many state attorneys general over contamination of natural resources, as well as a growing number of personal injury cases.
The plaintiffs’ bar has sought for many years to tie health effects to PFAS exposure via personal injury class actions. If the recent outcome of Hardwick v. 3M Company, et al is any indication, that effort remains an uphill battle. The Sixth Circuit Court of Appeals overturned a district court decision granting class certification (which would have covered more than 11 million Ohio residents) and concluded that firefighter Kevin Hardwick lacked standing to proceed. Hardwick had claimed he was exposed to PFAS in firefighting foams and that certain PFAS were detected in his blood. Yet he did not allege that any of the 10 defendant chemical makers manufactured those PFAS found in his blood and did not allege “any plausible pathway” by which the defendants could have delivered the PFAS into the bloodstream of the plaintiff or class members.
“Seldom is so ambitious a case filed on so slight a basis,” remarked Judge Raymond Kethledge in the panel’s opinion.
But if the Hardwick decision was a victory for the defendants, it is likely also a roadmap for future plaintiffs to plead traceability more carefully. Other large class actions loom — in October a federal court in North Carolina certified two classes of plaintiffs, including private well owners and water utility customers, in a lawsuit over PFAS discharges into the Cape Fear River: Nix et al. v. The Chemours Co et al. As the medical and scientific community continues to study effects of PFAS exposure on health, and links are made between certain chemicals and particular health outcomes, the number of cases filed will undoubtedly grow.
For personal injury cases, the focus to date has been on manufacturers of chemicals and chemical mixtures (like firefighting foam) and the contamination of drinking water. Plaintiff attorneys targeting consumer product manufacturers have focused on consumer protection theories, rather than personal injury claims, keying in on categories like food packaging, apparel and cosmetics. Claims have generally included false advertising (regarding product safety or sustainability) or failure to disclose PFAS content.
But with more evidence of exposure effects, personal injury plaintiffs may find success targeting consumer products that contain PFAS. One thing is certain: The wave of PFAS litigation is unlikely to slow anytime soon.
Legislative bans and regulatory demands
At the state level, a dozen states now have laws prohibiting PFAS content in certain products or requiring disclosure of that PFAS content. Another 10 have pending bills. In California, the country’s largest state economy saw PFAS bans go into effect for food packaging and juvenile products, with textile and cosmetic bans to come in 2025, and disclosure requirements now effective for cookware products. New York likewise banned the use of PFAS in food packaging and will have a ban for apparel coming into effect next year. Colorado will have bans effective on six product categories next year, as well as five more over the next four years. Minnesota and Maine passed the broadest bans on PFAS content, covering nearly all manufactured products, effective in 2025 and 2030, respectively. Massachusetts, Vermont and New York all have proposed similar comprehensive bans.
The action with the broadest impact was perhaps on the federal level. In October, the U.S. Environmental Protection Agency (EPA) finalized an extensive reporting rule under the Toxic Substance Control Act (TSCA) that mandates businesses report detailed information on PFAS content and use going back to 2011, including identity, volume, uses, byproducts and health effects. The rule covers manufacturers and importers of PFAS, as well as manufacturers and importers of articles (i.e., consumer products and their components) that contain PFAS.
Companies must conduct a “reasonable inquiry,” both within and outside their organization, regarding PFAS usage. The timeline for compliance is short — affected businesses have only 18 months (by May 2025) to review their operations and assess their supply chains to gather and report more than 10 years of data. Nearly every product manufacturer and importer is covered by the rule, and there are no exemptions for small businesses or de minimis quantities of PFAS content. Businesses must have a plan for finding and collecting the PFAS-related information and carefully documenting that effort to show compliance.
What should manufacturers be doing in 2024?
Attention in 2023 may have focused on the multi-billion-dollar liability of PFAS chemical producers, but trends in litigation, federal reporting demands and growing state regulation mean it is past time for product manufacturers to get visibility on PFAS in their own goods.
That is no simple task. Product manufacturers may struggle to identify the chemical composition of components, particularly with overseas suppliers. Gathering and verifying data on materials going into manufactured products while navigating supply chain relationships likely requires the assistance of legal counsel and outside experts. Companies that have yet to start that process on PFAS should not wait. If the past year is any indication, manufacturers cannot manage the PFAS risks of 2024 and beyond, nor prepare to phase out the chemicals, without a clear picture of PFAS presence in their current supply chain.
Guy Temple is a Milwaukee-based shareholder in Reinhart’s Litigation Practice and co-chair of the firm’s PFAS practice, where he counsels product manufacturers, developers, dealers and distributors in avoiding, defending and prosecuting complex commercial disputes. He also assists product manufacturers and distributors in navigating the rapidly changing state and federal regulatory landscape and litigation environment of PFAS “forever chemical” content in manufactured and imported products.
