Product liability and intentionally—versus unintentionally—added PFAS

Identifying per- and polyfluoroalkyl substances (PFAS) in products sold in commerce is a challenge. When they are found, however, product liability lawsuits often follow and result in substantial settlements. Three chemical manufacturing companies, Chemours, DuPont, and Corteva, announced on June 2 that they will settle at $1.185 billion that "forever chemicals" were used in manufacturing and then contaminated U.S. public water systems serving a "vast majority" of the country's population. This may only be the beginning, as lawsuits targeting chemical manufacturers and suppliers are expected to increase when perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), and potentially seven other PFAS are classified as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

A limited number of manufacturers have voluntarily reported PFAS in their products. Rigorous testing by researchers around the world, including the Organization for Economic Co-operation and Development (OECD) have identified PFAS in many products. However, manufacturers may discover in some instances that PFAS were added unintentionally to their products at some point during their manufacturing, packaging, or storage. Below we will showcase examples of both intentionally and unintentionally added PFAS and the ensuing product liability lawsuits.

First, some examples of intentional addition of PFAS. Major sources of PFAS have become well-studied and well-known over the past five years. The list of potential sources is significant even when we focus strictly on the originating primary sources (manufacturers of PFAS raw materials) and secondary sources (use of PFAS raw material for application or addition into a commercial product). North American Industry Classification System (NAICS) codes can be used to identify industries that commonly use PFAS and have a higher potential for use of PFAS products. Those NAICS codes that are commonly associated with PFAS are provided by the Association of State Drinking Water Administration (ASDWA) in their PFAS Source Water Protection Guidance Project Technical Appendix. Examples of industries that commonly use PFAS include, but are not limited to:

Unintentional addition of PFAS to products is also quite common. There are many well-known unintentional sources of PFAS (e.g., worker clothing, gloves, and greases/lubricants used in manufacturing equipment), and recently, a new unintentional source of PFAS has become known. Case studies of two common unintentional PFAS sources and one recently identified PFAS source and the associated product liability are presented below.

Well-known unintentional PFAS sources are introduced as a processing aid or are an unintended residual. For example, during the production of plastic parts like thermoplastics, polypropylene, epoxy resins, and polyurethane elastomer, the molten plastic is poured into a mold casting. PFAS are used to aid in mold release. PFAS in the mold release agents become coated onto the final product and then are potentially leachable from that product, even though they were never intentionally added to it. In 2021, the Toy Association advocated that the EPA exempt importers and small businesses from a proposed rule impacting all manufacturers using or processing PFAS in plastic polymers that are used for molded plastic parts or as additives to other resins, “which may be incidentally found in some toys and toy packaging.”

Another well-known source of PFAS is Aqueous Film Forming Foam (AFFF), commonly used in fire suppression systems. However, in this case the unintentional source of the PFAS is the residual AFFF. Military, airports, and industry are beginning to switch fire suppression systems to safer, non-fluorine foams (NFF). What is not well known at this point is whether unintentional PFAS will remain in the infrastructure and released over decades when the fire suppression infrastructure is re-used without sufficient cleaning/treatment to remove the old AFFF. Studies have shown that triple water flushing removes only 5 to 10 percent of the PFAS. A growing number of lawsuits from firefighters’ attorneys cite concerns that PFAS-containing firefighting foam increases the risk of cancer, liver damage, and a host of other illnesses. In short, owners of said fire suppression systems are not out of the woods, even after they switch to an alternative, NFF, at least not without either:

One newer, discovered unintentional source of PFAS arises from the treatment of high-density plastic polyethylene containers (e.g., bottles, drums, totes) with fluorine gas. Fluorination occurs as a separate step during the manufacturing of polyethylene bottles via blow molding using dilute fluorine gas. Fluorination surface treatment improves the resistance of polyethylene to many organic chemicals. This fluorination process creates bioavailable PFAS. Rinsate samples of fluorinated high-density polyethylene were found to contain bioavailable PFAS. In August 2021 and March 2022, the U.S. Food and Drug Administration (FDA) and U.S. EPA (EPA) issued notice letters to manufacturers, processors, distributors, users, and those that dispose of fluorinated polyethylene containers that when these containers come in contact with consumer products such as food, they can transfer PFAS to the contained product. Additionally, disposal of said fluorinated polyethylene containers could trigger reporting under Toxic Release Inventory regulations.

On December 19, 2022, the EPA filed suit against Inhance Technologies USA of Houston, Texas, under the Toxic Substance Control Act (TSCA). The EPA suit followed nearly two years of discussions between the agency and the company, during which time Inhance continued to produce PFAS in the HDPE fluorine gas process in violation of TSCA. A number of U.S. states have banned certain uses of product with intentionally added PFAS, including but not limited to Maine, New York, Washington, California, and Colorado. Although each of these state bans has its own, similar definition of “intentionally added PFAS,” it can be argued in a civil suit that the discovery of PFAS in a product is no longer unintentional, at least once the manufacturer has knowledge of the unintentional source of PFAS in the product, such as fluorine gas-treated HDPE and processing aids such as metal plating mist suppression and mold release agents.

In conclusion, our understanding of both intentional and unintentional PFAS sources is evolving, and new sources of PFAS in products may find themselves subject to product liability lawsuits. The number of lawsuits is expected to grow with the likely designation of select PFAS as hazardous substances under CERCLA. These lawsuits may broaden into personal injury and environmental claims as well. The legal community must become well-informed about PFAS and be prepared for active times ahead.

Caron Koll leads Antea Group's PFAS service offerings with nearly 40 years of experience in the environmental business serving private and public clients globally. She is a subject matter expert on contaminant fate and transport PFAS and co-contaminants.

Jack Sheldon, a senior remediation specialist for Antea Group, has over 41 years of experience in environmental consulting. He leads Antea Group's Site Assessment & Remediation service line and provides expertise in PFAS risk management, investigation, and remediation.