Recent studies have shown that exposure to PFAS (per- and polyfluoroalkyl substances), dubbed “forever chemicals,” since they don't break down and can accumulate over time, can in some instances lead to adverse human health effects.

PFAS, which refers to a family of thousands of man-made chemicals that persist in the environment and in the human body, have been used since the 1940s in a wide range of industrial and commercial products, including everyday household items such as nonstick cookware, water-resistant apparel and shoes, and stain-resistant carpeting.

Those same qualities that make PFAS prized ingredients in so many industries, however, are the same qualities that are now causing public concern and driving significant litigation and regulatory actions. Emerging litigation surrounding PFAS' adverse impacts has been so rapid—and the exposures so significant—that some see PFAS as the new asbestos.

For instance, in Leach v. E.I. Du Pont de Nemours & Co., Case No. 2:14-cv-23755, roughly 80,000 class members contended that PFAS from a manufacturing facility near the mid-Ohio River Valley contaminated the water supply for at least six public water systems in West Virginia and Ohio. DuPont and Chemours settled this class action lawsuit relating to one site for approximately $1 billion.

Recent studies have found that PFAS-containing water supplies have affected as many as 110 million people in the United States. Consequently, numerous governmental entities and private property owners have commenced lawsuits against the polluting manufacturers to seek cleanup and remediation costs. In Minnesota v. 3M Co., for example, the state of Minnesota sued 3M Co. for $5 billion, alleging damage to the state's natural resources, including to its drinking water supply and wildlife. 3M settled the lawsuit for $850 million. Other states, cities, and municipalities across the country are instituting litigation against 3M, DowDuPont, and other manufacturers for similar claims.

State and federal agencies, as well as private plaintiffs, are continuing to file lawsuits around the country seeking redress for PFAS contamination, including for personal injury as a result of PFAS entering the body through consumption of food and water and continuous contact with PFAS-containing materials. Just by way of example, more than 80 lawsuits involving the Aqueous Film-Forming Foam Concentrates firefighting foam were recently consolidated into a multidistrict litigation proceeding in South Carolina. Of those 80 lawsuits, more than 60 are class actions.

Estimates put some level of PFAS contamination in nearly all 50 states. Due to their heavy usage and known adverse health effects, many states that have grown impatient with federal inaction are now regulating PFAS. These regulations from states such as Minnesota, Michigan, California and New York include setting the maximum contaminant levels for certain perflourinated chemicals in drinking water, limiting which PFAS chemicals can be used in food packaging, and requiring fire departments to report the use of firefighting foam containing PFAS.

What Does PFAS Mean for You?

For most, the answer is likely nothing at this point—but maybe it should. PFAS' pervasiveness and the public's (and more importantly, the plaintiffs' bar) heightened awareness of the chemicals' potential dangers have made companies litigation and regulation targets. Some estimate current and future liabilities for PFAS contamination to be in the billions, if not hundreds of billions.

And the implications of PFAS reach outside of the litigation and regulatory arenas, including into conducting real estate and other transactional due diligence, acquiring appropriate insurance to address any PFAS fallout, and implementing best practices to avoid exposures to employees and the environment.

PFAS litigation and regulation may not last “forever,” but it appears they're here to stay for some time. For lawyers and their clients, early risk assessment and mitigation measures are the key to avoiding PFAS exposures. This is particularly true for clients whose businesses touch in any way upon chemical manufacturing, waste transportation and disposal, energy production, and the manufacture or sale of stain- and water-resistant products.

Lawyers can help their clients do this by starting with, among other things: evaluating whether their clients use PFAS source materials or secondary products; analyzing their clients' insurance program for potential coverage of PFAS liabilities; revisiting their clients' policies and procedures for waste disposal and employee safety as regards chemical exposures; and evaluating their clients' contractual relationships for possible indemnity protection or liabilities.

Matt Schroeder, Elliot Strader, and Xakema Henderson are lawyers with Akerman LLP in Dallas whose practice is focused on complex commercial litigation. The team has particular experience in environmental insurance coverage and regulatory compliance matters, including those involving emerging contaminants such as PFAS chemicals PFOA, PFOS and GenX.