Forever chemicals, also known as per- and polyfluoroalkyl substances (“PFAS”), are a group of man-made chemicals that are widely used in various industries due to their unique properties. These chemicals are called “forever” because they are extremely persistent and do not break down easily in the environment. PFAS are composed of carbon and fluorine atoms, which create strong carbon-fluorine bonds. This bond is exceptionally stable, making PFAS resistant to heat, water, oil, and many chemicals. They have been used in a wide range of consumer products, including non-stick cookware, waterproof fabrics, stain-resistant carpets, food packaging, and firefighting foams. Their resistance to degradation has led to their accumulation in the environment and exposure to humans and wildlife.
The persistent nature of PFAS poses significant concerns. They do not break down naturally and can persist in the environment for a long time. This means that even if their use is discontinued, the chemicals can remain in soil, water, and air for many years, leading to potential long-term exposure. They have been detected in various environmental compartments such as surface water, groundwater, soil, and even in the bodies of humans and animals. Health studies have linked exposure to PFAS with various adverse effects. Some PFAS have been associated with an increased risk of cancer, liver damage, immune system disruption, reproductive and developmental issues, and other health problems. Due to their widespread use and persistence, PFAS contamination has become a global concern.
Efforts are being made to regulate and phase out certain PFAS compounds, and many countries and organizations have implemented restrictions on their use. However, due to their extensive historical use and the presence of these chemicals in the environment, addressing PFAS contamination remains a significant challenge.
Litigation to Date
PFAS-centric lawsuits are increasingly being filed against manufacturers and retailers, alike. Some of the early cases were filed against chemical manufacturers, industrial facilities, and other entities directly responsible for the release of PFAS into the environment or for failing to adequately address the associated risks. Such suits typically involve individuals or communities affected by PFAS contamination seeking compensation for damages related to health issues, property devaluation, or the cost of remediation. Lawsuits have been filed by individuals, as well as by municipalities, water districts, and other entities seeking to recover costs associated with cleaning up contaminated sites or providing clean drinking water.
Some notable lawsuits include the legal action taken against DuPont and Chemours related to contamination from the production of perfluorooctanoic acid (“PFOA”) in West Virginia. This case resulted in a multimillion-dollar settlement for affected individuals. In another high-profile case, 3M settled a lawsuit brought by the state of Minnesota for $850 million over allegations of PFAS contamination. At the same time, there have been class-action lawsuits seeking compensation on behalf of larger groups of individuals who have been exposed to PFAS. These lawsuits often focus on communities located near military bases or industrial facilities where PFAS-containing firefighting foams were used.
More recently, cases are being waged against consumer-focused companies and retailers over their sale of PFAS-containing products. One such suit was filed in 2018 against several major retailers, including Target, Walmart, and Amazon, with the state of California alleging that these retailers had sold and distributed carpets and rugs containing PFAS without providing sufficient warning to consumers about the potential health risks associated with these chemicals. In addition to direct product liability claims, retailers have also faced lawsuits related to environmental contamination caused by the disposal of products containing PFAS. For instance, there have been cases where retailers have been sued for the release of PFAS-containing firefighting foam during training exercises or emergency responses.
The legal landscape surrounding PFAS is evolving, and more lawsuits are expected as the understanding of the health and environmental impacts of these chemicals continues to grow.