PFAS Observer
Litigation risks associated with per and polyfluoroalkyl substances (PFAS) continue to grow, as demonstrated by settlements over the last year in the set of claims being adjudicated in a multidistrict litigation (MDL-2873) in the U.S. District Court for the District of South Carolina (“MDL”) and other recent lawsuits.
AFFF Settlements in the MDL Ballooning
The MDL is a consolidation of more than 7,000 lawsuits related to PFAS contamination brought against primary and secondary manufacturers of aqueous film-forming foam (AFFF). As recently noted by Pillsbury, the adjudication of the claims comprising the MDL continues to progress, leading some defendants to enter into settlement agreements that can stretch into the hundreds of millions of dollars.
In October 2024, Carrier Global reached a $730 million settlement over claims that the company’s fire protection unit, Kidde-Fenwal, used PFAS chemicals in its firefighting foam products. The Carrier settlement occurred as part of a bankruptcy proceeding for Kidde-Fenwal, which filed Chapter 11 bankruptcy in light of the more than 4,400 PFAS-related claims the company was facing. Kidde-Fenwal is now seeking a buyer for its business as a result of the liability from its AFFF products, telling the bankruptcy court that its likely liability “substantially exceeds” its ability to pay. Kidde-Fenwal is just one of several manufacturers of PFAS-containing products expending millions of dollars in litigation costs defending suits from municipalities, public drinking water systems, and other entities.
Firefighters’ Unions: A Growing Class of PFAS Litigants
As Pillsbury previously detailed, lawsuits have been brought against more than 40 turnout gear manufacturers in multiple jurisdictions including Massachusetts, New York and South Carolina. The suits allege that turnout gear containing PFAS has led to rising rates of cancer and other serious medical conditions. Firefighters’ unions have proven to be particularly aggressive in pressing such claims. In June 2024, The Uniformed Professional Fire Fighters of Connecticut (along with five other unions and five individual firefighters) filed a class action against primary manufacturers of PFAS as well producers of turnout gear. The unions allege that, in addition to inhaling PFAS, PFAS leeched into firefighters’ skin via the defendants’ turnout gear.
The resolution of these cases is likely to depend, in part, upon scientific research regarding the extent to which dermal contact with PFAS-containing material may result in adverse health effects.[1] As Pillsbury previously noted, the National Institute of Standards and Technology (NIST) published an evaluation of PFAS in turnout gear, stressing the need for additional research on the potential for harmful dermal exposure. In May 2024, researchers at the University of Birmingham published a study concluding that “uptake through the skin could be a significant source of exposure to these harmful [PFAS] chemicals.” The researchers used lab-grown tissue to simulate human skin and tested how much PFAS compounds the tissue could absorb.
More research seems necessary to draw a clear, demonstrable link between PFAS exposure through dermal contact and increased rates of cancer. However, early indications are that potential plaintiffs may not wait for such scientific validation to bring suit.
Bandages Litigation
Another set of recent lawsuits that touches upon the dermal contact pathway involves potential PFAS content in bandages. In August 2024, a class action lawsuit was filed against Walgreens on the basis that the company breached implied and express warranties and violated state consumer protection laws by selling PFAS-containing bandages without disclosing the presence of these chemicals. Among other things, the plaintiffs in the lawsuit advance a theory that by marketing the PFAS-containing bandages as “safe” and not disclosing their presence, Walgreens violated the Illinois Consumer Fraud Act by “knowingly misrepresenting and failing to disclose to consumers … on the Bandages’ packaging, labels, and advertisements the material fact that the Bandages were contaminated with and contained PFAS. The plaintiffs also specifically reference that “exposure to PFAS through skin (dermal contact) … is immunotoxic and raise concern.”
Notably, the complaint against Walgreens cites the total organic fluorine test as the “gold standard” for identifying PFAS (Par. 24). However, other courts have disagreed with this assessment. For example, earlier this year, in the case styled Bounthon et al. v. Procter & Gamble Co., the Northern District of California dismissed in part a consumer class action involving false advertising claims. Specifically, the court found that total organic fluorine testing was insufficient to demonstrate the presence of PFAS in tampons. The court cited the very documents referenced by plaintiffs to point out that “TOF may detect organofluorine chemicals that are not PFAS.” As such, plaintiffs’ positive test results do not necessarily mean that the defendant’s product contains PFAS. Targeted PFAS analysis is necessary to demonstrate that “the total fluorine measured originally comes from the use of … PFAS.”
Conclusion
The above lawsuits highlight the growing litigation risks for businesses that market and sell PFAS-containing products that come into direct contact with skin or that provide such materials to their employees. Businesses that engage in such activities may wish to consider the merits of proactively evaluating their nexus to PFAS, as well as to consider potential means of mitigating or offsetting PFAS-related liabilities, including through insurance coverage.
[1] As scientific understanding of different exposure pathways continues to evolve, it is important to note that the current weight of the scientific literature indicates that the ingestion pathway (e.g. exposure via drinking water that contains PFAS) remains the most significant and exposure pathway for PFAS. See, e.g., “Human exposure pathways to poly- and perfluoroalkyl substances (PFAS) from indoor media: A systematic review protocol,” Environ Int. 2020 Dec 11;146:106308. doi: 10.1016/j.envint.2020.106308.
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