November 17, 2022 Manufacturers Beware of “Forever Chemicals” Litigation

“Forever” PFAS chemicals have been used in manufacturing and packaging for decades but now present expanding risk for manufacturers.

By David J. Marmins and Morgan E. M. Harrison

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 (PFAS) in your operations. And if you have used PFAS in your operations, you could very well find yourself caught in the crosshairs of the next PFAS lawsuit. For the uninitiated, it might be difficult to appreciate what that could mean for your business. To put it in context, many legal insiders have identified PFAS litigation as the next frontier of environmental litigation, similar—if not even broader in scope—to the wave of asbestos litigation of the late 20th century.

What Are PFAS?

PFAS are synthetic chemicals that resist soil, water, heat, oil, and grease. Originally developed by chemists at DuPont and 3M in the late 1930s and early 1940s, the first notable PFAS chemicals were perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). Today, there are several thousand known PFAS chemicals, many of which are used in clothing (especially water-resistant outerwear), shoes, makeup, carpet, food packaging, household cleaners, non-stick cookware, medical devices and supplies, and Aqueous Film Forming Foam (AFFF) used for firefighting and military operations.

The same qualities that make PFAS so useful also make it problematic. PFAS have been dubbed “forever chemicals” because they are extremely stable and persist in the environment unless they are actively remediated. PFAS can also travel through the environment and bioaccumulate in wildlife, groundwater, and surface waters. Reports from scientists at the Centers for Disease Control and Prevention indicate that there has been “widespread exposure” to certain PFAS in the U.S. population. While early studies suggest that high levels of exposure can lead to adverse health outcomes, the human health effects of PFAS remain largely unknown and are the subject of ongoing research.

Because of its widespread use and persistence, PFAS can be found in the blood of most humans and rainwater throughout the world.

The Genesis of PFAS Litigation: A Farmer’s Case Against DuPont

The first major PFAS lawsuit was filed in the late 1990s by Wilbur Tennant. Mr. Tennant was a farmer whose land abutted a DuPont chemical plant in Parkersburg, West Virginia, where DuPont made Teflon, which—at least at that point in time—contained PFOA. Mr. Tennant’s cows grazed and drank from a stream where DuPont’s chemical waste had made its way from a nearby landfill, and it was not long before they all began to die.

Mr. Tennant filed a lawsuit against DuPont, and during the course of the case, DuPont produced hundreds of thousands of documents that revealed it had determined as far back as the 1960s that PFOA could be toxic in animals. Although Mr. Tennant ultimately settled his case, his attorney then sued DuPont on behalf of thousands of people who lived near the Teflon plant in Parkersburg and had been exposed to PFAS through their drinking water and air. When DuPont settled that class action lawsuit in 2004, the company agreed to finance a study of PFOA’s health effects, which found a “probable link” between PFOA and certain diseases in humans. To this day, though, the EPA only goes so far as to say that “current scientific research suggests that exposure to high levels of certain PFAS may lead to adverse health outcomes.”

PFAS Litigation Today

The early lawsuits against DuPont started a wave of PFAS litigation that, over time, has expanded greatly in scope. In addition to individuals and classes of individuals, plaintiffs today include states, counties, and municipalities, as well as environmental groups.

Apart from the chemical manufacturers themselves, plaintiffs have sued commercial PFAS users that make products containing PFAS and/or use packaging with PFAS in it. These lawsuits have included 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. Some environmental groups have sued manufacturers for false advertising, alleging that they have engaged in “greenwashing” their products that contain PFAS.

In many of these lawsuits, the plaintiffs are seeking money damages, including recovery for the diminution in value of their property where PFAS has been detected, medical monitoring costs, and the cost of a filtration system that filters out PFAS. But several also include a demand for equitable relief, where the plaintiffs essentially want the court to order the defendant to undertake some affirmative action to address the PFAS problem, including remediating PFAS from where it has been discharged into the environment. Often, the plaintiffs also want the court to order the defendant to stop discharging PFAS in their wastewater.

What’s on the Horizon for the Manufacturing Sector?

In the past, PFAS manufacturers and users have relied on the lack of federal regulations or other enforceable standards limiting PFAS use and discharge in their defense. But after years of study, PFAS regulations are on the horizon, with the latest timetable from the EPA promising enforceable, and very hard to meet, standards no later than 2023. Once these rules are established, the leverage will shift dramatically toward the plaintiffs’ bar.

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.

At the very least, manufacturers should take stock of their current and historical PFAS use and potential liability exposure. 

David J. Marmins is a partner in Arnall Golden Gregory LLP’s Litigation and Real Estate practices and co-chair of the firm’s Retail industry team. David is at the forefront of PFAS litigation and currently serves as defense counsel to three manufacturing industry clients in PFAS litigation in federal and state court. He can be contacted at david.marmins@agg.com. 

Morgan E.M. Harrison is an associate in Arnall Golden Gregory’s Litigation practice. Morgan is a frequent writer and speaker on PFAS litigation and has represented three defendants in one of the largest PFAS cases in the U.S. She can be contacted at morgan.harrison@agg.com.

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