Plastic industry braces for ‘astronomical’ PFAS lawsuits

As the dangers of PFAS become more widely known, plastic manufacturers face a surge in lawsuits that could rival the asbestos litigation of the past.

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A wave of lawsuits related to PFAS, or “forever chemicals,” is poised to hit the plastic industry, with defense lawyers warning of potentially “astronomical” costs. Speaking to a room full of plastic-industry executives earlier this year, defense lawyer Brian Gross cautioned that the coming litigation could surpass the scale of asbestos-related cases, which remain one of the most extensive corporate-liability battles in U.S. history.

PFAS (per- and polyfluoroalkyl substances) have been used for decades in a myriad of everyday products, including cosmetics, takeout containers, and frying pans. These synthetic chemicals are valued for their resistance to water, stains, heat, and grease. However, PFAS have been linked to serious health risks, such as cancer, developmental delays in children, decreased fertility, liver damage, and thyroid disease. Their persistence in the environment has earned them the nickname “forever chemicals.”

Recent regulatory changes have brought PFAS into sharper focus. Last month, the federal government mandated the removal of several types of PFAS from the drinking water of hundreds of millions of Americans, highlighting the urgent need to address their widespread contamination.

Litigation related to PFAS is not new. Major manufacturers like DuPont, its spinoff Chemours, and 3M have faced lawsuits for PFAS contamination. In a notable case last year, 3M agreed to pay at least $10 billion to water utilities across the United States to compensate for cleanup costs. Thirty state attorneys general have also sued PFAS manufacturers, accusing them of widespread contamination.

However, experts suggest that the legal battle is just beginning. A wider range of companies that use PFAS in their products is coming under scrutiny. This month, a class-action lawsuit was filed against Bic, accusing the razor company of failing to disclose that some of its razors contained PFAS.

The Biden administration has taken significant steps to regulate PFAS. For the first time, municipal water systems are required to remove six types of PFAS. Additionally, the Environmental Protection Agency (EPA) has designated two of these chemicals as hazardous substances under the Superfund law. This shift transfers the responsibility for cleanup from taxpayers to polluters, potentially prompting new rounds of litigation from water utilities, local communities, and others seeking compensation for cleanup costs.

Brian Gross advised plastic industry executives to proactively review their marketing materials and communications with customers and suppliers to identify and mitigate any problematic content. “Do what you can, while you can, before you get sued,” Gross urged, according to a recording of the event obtained by The New York Times. He emphasized the importance of selecting credible witnesses to represent their companies in court.

PFAS chemicals have been detected in virtually every environment scientists have studied, including drinking water, rain over the Great Lakes, and even Antarctic snow. They are present in the blood of nearly every American, reflecting their pervasive nature. Health problems linked to PFAS exposure include testicular and kidney cancers, liver damage, and thyroid disease.

Sandy Wynn-Stelt of Belmont, Michigan, exemplifies the personal toll of PFAS exposure. After losing her husband to liver cancer in 2016, Wynn-Stelt discovered that the nearby Christmas tree farm had been a dumping ground for PFAS-laden tannery waste. Subsequent blood tests revealed PFAS levels hundreds of times higher than normal. In 2020, she was diagnosed with thyroid cancer. She sued Wolverine World Wide, the maker of Hush Puppies shoes, and 3M, reaching a settlement in 2021.

There is broad scientific agreement on the harmful effects of certain PFAS chemicals. Linda Birnbaum, a toxicologist and former director of the National Institute of Environmental Health Sciences, stated, “There’s a weight of evidence. Multiple studies by different investigators, and in different populations.” However, the sheer number of different PFAS chemicals and the long-term nature of their health effects pose challenges for research and litigation.

Max Swetman, another partner at MG+M The Law Firm, highlighted the need for credible experts to testify in court. “Epidemiologists, if you get the right one, is always going to be your best expert in trial,” he said. Swetman acknowledged that new scientific studies could complicate the defense’s case.

The scale and impact of PFAS litigation could rival or exceed past legal battles involving tobacco, asbestos, and MTBE (methyl tert-butyl ether), a harmful gasoline additive. Unlike tobacco, which was used by only a subset of the population, PFAS are ubiquitous. “Pretty much every one of us in the United States is walking around with PFAS in our bodies,” said Erik Olson, senior strategic director for environmental health at the Natural Resources Defense Council. “That’s a formula for really significant liability.”

A long and difficult cleanup process is beginning. President Biden’s 2021 infrastructure law provides $9 billion to help communities address PFAS contamination, with $1 billion set aside for initial testing and treatment. Despite efforts to phase out certain PFAS chemicals, new variants continue to enter the environment, requiring ongoing research and regulation.

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Alexandra Jacobo is a dedicated progressive writer, activist, and mother with a deep-rooted passion for social justice and political engagement. Her journey into political activism began in 2011 at Zuccotti Park, where she supported the Occupy movement by distributing blankets to occupiers, marking the start of her earnest commitment to progressive causes. Driven by a desire to educate and inspire, Alexandra focuses her writing on a range of progressive issues, aiming to foster positive change both domestically and internationally. Her work is characterized by a strong commitment to community empowerment and a belief in the power of informed public action. As a mother, Alexandra brings a unique and personal perspective to her activism, understanding the importance of shaping a better world for future generations. Her writing not only highlights the challenges we face but also champions the potential for collective action to create a more equitable and sustainable world.

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