Companies at risk of legal action amid likely PFAS clampdown, warn lawyers

UK businesses and their insurers have been warned they must brace for the risks posed by potential litigation related to perfluoroalkyl and polyfluoroalkyl substances (PFAS), with new rules and regulations likely to be implemented soon.

Leading lawyers from across the world gathered in London for RPC’s Global Access Conference, which ran between 7-9 March.

The event saw attendees examine the threat posed by looming and fast evolving environmental litigation.

As courts in the UK, US and Europe wrestled with a wave of environmental and climate related legal actions that are set to define legal precedent, the panel warned that PFAS – known as “forever chemicals” – were likely to be banned in the first wave of legislation.

This could put companies of all sizes at risk of legal action as a result.

More court cases?

PFAS are a large class of thousands of synthetic chemicals used throughout society, according to the European Chemicals Agency – uses include non-stick coatings for cookware and water-repellent clothing.

Lucy Dyson, a partner at RPC in London, explained that PFAS and plastic pollution were in the crosshairs of governments and regulators across the world due to the damage they posed to health and the environment.

She explained there were an estimated 9bn tonnes of plastic in the world’s oceans, but there was no clear plan on how to tackle the threat they posed.

As for PFAS, she added: “These are chemicals that are in everything, from carpets to cookware to school uniforms.

“As yet, regulations outside of the US are in their infancy.”

When asked about the climate and environmental litigation threats faced by businesses in the UK and Europe, Dyson said PFAS and plastics were the area where there was likely to be a rise in court cases.

She added that this was also an issue that could affect UK firms of all sizes, due to the widespread use of PFAS and the requirements for firms to understand the environmental, social and governance (ESG) risks within their supply chain.

“Of the environmental and climate risks, the one that businesses need to be most concerned with is that of PFAS,” added Dyson.

“New regulations will have the potential to affect supply chains for so many businesses.

“Given the multinational nature of supply chains, firms are likely to be asked to examine those supply chains to identify if there are PFAS within their suppliers and goods, along with the impact that may have.

“What we will see, following the ongoing regulation in the USA, will be regulatory standards developed at pace as the concerns [over] PFAS use continues.

“Companies will be increasingly responsible for their supply chains, so it is likely that PFAS will be a risk, which will become apparent before many others.”

Challenge of causation

These comments came amid growing concerns over the impact of the chemicals on human health – in the US there are already several cases in which the impact of the chemicals are being debated.

Activists have said the chemicals need to be banned in their entirety, such is the danger they pose.

The US authorities have reacted – with 1,300 of an estimated 10,000 different PFAS’ set to be included on the list of substances that will fall within the remit of the Toxic Substances Control Act.

Beth Daschbach, partner at New Orleans-based legal firm Hinshaw and Culbertson, said the issue was complicated by continued debate around how best to define causation.

“The challenge is causation,” she explained.

“There is not quite yet research linking exposure to a particular disease, such as we have seen with asbestos.”

However, she warned that, as scientists continued to research the effects of PFAS, the impact may well see a similar issue to that with asbestos – wherein the threshold around causation was lowered.

“The question around causation has always been ‘but for’,” she explained.

“However, what we saw with toxic tort and asbestos was a shift in some ways away from the ‘but for’ into an injustice – that lowered the causation threshold.

“With greater scientific understanding and an increased awareness from the public, we are likely to see the threshold for causation in terms of PFAS lowered.”

Daschbach added: “PFAS are worldwide and so are supply chains.

“The scope of PFAS in the supply chain is so broad and it looks like we may see a surge in litigation very quickly.”