PFAS: A primer on the latest toxic tort area of concern

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Introduction and context

For the last several decades asbestos has been the most heavily litigated toxic tort cases in the country. However, in the 1970s, the Federal Government banned the use of asbestos in a variety of products. Several states have done so as well. As a result, asbestos cases are starting to tail off and, at some point in time in the near future, asbestos litigation will be a thing of the past.

In light of the tapering off of asbestos cases, the toxic tort plaintiffs bar has been searching for an area of litigation to replace asbestos. First, it was cigarettes, then benzene, and finally mold. None of these had any legs for several reasons particularly problems with causation in light of the evolving scientific and medical research.

The latest type of cases involved PFAS, also known as “forever” chemicals. The last five years has seen a dramatic rise in cases involving exposure to PFAS and cases by municipalities and water districts seeking damages caused by water contamination. Unlike benzene, cigarettes and mold, PFAS claims appear to have legs, at least for now.

The following is a brief primer on PFAS, including a description of PFAS typical exposures, the potential harm of exposure to PFAS, as well as examples of government regulations. Stay tuned to this space for continuing updates on PFAs litigation. In particular, we will provide updates on settlements and verdicts, as well as updates on the results of scientific and medical research.

What are PFAS?

Perfluoroalkyl and polyfluoroalkyl substances (“PFAS”) are a group of manufactured chemicals that have been used in industry and consumer products since the 1940s because of their useful properties. There are thousands of different PFAS, some of which have been more widely used and studied than others.

Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS), for example, are two of the most widely used and studied chemicals in the PFAS group. PFOA and PFOS have been replaced in the United States with other PFAS in recent years.

One common characteristic of concern of PFAS is that many break down very slowly hence PFAS are commonly referred to as “forever” chemicals. In fact, PFAS can build up in people, animals, and the environment over time.

Not all chemical companies manufacturer PFAS. The primary manufacturers are:

  • Arkema
  • Asahi
  • BASF (Ciba)
  • Clariant
  • Daikin
  • DuPont (PFAS business now under the name Chemours)
  • Dyneon/3M
  • Solvay

These companies, particularly DuPont/Chemours have been the subject of PFAS litigation in the past few years.

PFAS are present almost everywhere

PFAS can be present in our water, soil, air, and food as well as in materials found in our homes or workplaces, including:

  • Drinking water – in public drinking water systems and private drinking water wells.
  • Soil and water at or near waste sites - at landfills, disposal sites, and hazardous waste sites such as those that fall under the federal Superfund and Resource Conservation and Recovery Act programs.
  • Fire extinguishing foam - in aqueous film-forming foams (or AFFFs) used to extinguish flammable liquid-based fires. Such foams are used in training and emergency response events at airports, shipyards, military bases, firefighting training facilities, chemical plants, and refineries.
  • Manufacturing or chemical production facilities that produce or use PFAS – for example at chrome plating, electronics, and certain textile and paper manufacturers.
  • Food – for example in fish caught from water contaminated by PFAS and dairy products from livestock exposed to PFAS.
  • Food packaging – for example in grease-resistant paper, fast food containers/wrappers, microwave popcorn bags, pizza boxes, and candy wrappers.
  • Household products and dust – for example in stain and water-repellent used on carpets, upholstery, clothing, and other fabrics; cleaning products; non-stick cookware; paints, varnishes, and sealants.
  • Personal care products – for example in certain shampoo, dental floss, and cosmetics.
  • Biosolids – for example fertilizer from wastewater treatment plants that is used on agricultural lands can affect ground and surface water and animals that graze on the land.

How are people exposed to PFAS?

Due to their widespread production and use, as well as their ability to move and persist in the environment, surveys conducted by the Centers for Disease Control and Prevention (CDC) show that most people in the United States have been exposed to some PFAS. Most known exposures are relatively low, but some can be high, particularly when people are exposed to a concentrated source over long periods of time. Some PFAS chemicals can accumulate in the body over time.

Current research has shown that people can be exposed to PFAS by:

  • Working in occupations such as firefighting or chemicals manufacturing and processing.
  • Drinking water contaminated with PFAS.
  • Eating certain foods that may contain PFAS, including fish.
  • Swallowing contaminated soil or dust.
  • Breathing air containing PFAS.
  • Using products made with PFAS or that are packaged in materials containing PFAS.

Is exposure to PFAS harmful to human health?

Current scientific research suggests that exposure to certain PFAS may lead to adverse health outcomes. However, research is still ongoing to determine how different levels of exposure to different PFAS can lead to a variety of health effects. Research is also underway to better understand the health effects associated with low levels of exposure to PFAS over long periods of time, especially in children.

What we know about health effects

Current peer-reviewed scientific studies have shown that exposure to certain levels of PFAS may lead to:

  • Reproductive effects such as decreased fertility or increased high blood pressure in pregnant women.
  • Developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations, or behavioral changes.
  • Increased risk of some cancers, including prostate, kidney, and testicular cancers.
  • Reduced ability of the body’s immune system to fight infections, including reduced vaccine response.
  • Interference with the body’s natural hormones.
  • Increased cholesterol levels and/or risk of obesity.

Additional health effects are difficult to determine

Scientists at the Environmental Protection Agency (EPA), in other federal agencies, and in academia and industry are continuing to conduct and review the growing body of research about PFAS. However, health effects associated with exposure to PFAS are difficult to specify for many reasons, such as:

  • There are thousands of PFAS with potentially varying effects and toxicity levels, yet most studies focus on a limited number of better known PFAS compounds.
  • People can be exposed to PFAS in different ways and at different stages of their life.
  • The types and uses of PFAS change over time, which makes it challenging to track and assess how exposure to these chemicals occurs and how they will affect human health.

Certain adults and children may have higher exposure to PFAS

Adults

Some adults have higher exposures to PFAS than others because of their occupations or where they live. For example:

  • Industrial workers who are involved in making or processing PFAS or PFAS-containing materials, or people who live or recreate near PFAS-producing facilities, may have greater exposure to PFAS.
  • Firefighters who use fire extinguishing foam.
  • Pregnant and lactating women tend to drink more water per pound of body weight than the average person and as a result they may have higher PFAS exposure compared to other people if it is present in their drinking water.

Children

Because children are still developing, they may be more sensitive to the harmful effects of chemicals such as PFAS. They can also be exposed more than adults because:

  • Children drink more water, eat more food, and breathe more air per pound of body weight than adults, which can increase their exposure to PFAS.
  • Young children crawl on floors and put things in their mouths which leads to a higher risk of exposure to PFAS in carpets, household dust, toys, and cleaning products.
  • Breast milk from mothers with PFAS in their blood and formula made with water containing PFAS can expose infants to PFAS, and it may also be possible for children to be exposed in utero during pregnancy. Scientists continue to do research in this area.

In short, almost everyone, regardless of age, gender or occupation, is exposed to PFAS on a regular basis. Currently, the scientific research is inconclusive as to whether exposures to PFAS can cause a particular health effect, i.e. a “signature disease.” A “signature disease” is one which the medical and scientific literature generally agree can be caused by exposure to a certain chemical depending on the specific facts of the case (i.e. dose exposure, cumulative exposure, and the temporal relationship between exposures and diagnosis). For example, mesothelioma is a “signature disease” for asbestos exposure in light of the scientific and medical research.

Examples of PFAS legislation

In light of the potential harmful effects and ubiquitous nature of PFAS, federal, state and local governments have enacted legislation and regulations to limit exposure. The following are some examples of such recent legislation and regulation.

Federal Government

In April of 2024, the Biden Administration’s EPA issued the first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful PFAS. The standard assumes that exposure to PFAS has been linked to deadly cancers, impacts to the liver and heart, and immune and developmental damage to infants and children. This final rule represents the most significant step to protect public health under EPA’s PFAS Strategic Roadmap. The final rule will reduce PFAS exposure for approximately 100 million people, prevent thousands of deaths, and reduce tens of thousands of serious illnesses.

This rule sets limits for five individual PFAS: PFOA, PFOS, PFNA, PFHxS, and HFPO-DA (also known as “GenX Chemicals”). The rule also sets a limit for mixtures of any two or more of four PFAS: PFNA, PFHxS, PFBS, and “GenX chemicals.” Under the EPA’s new rules, public water systems will be required to test drinking water and make sure levels of the five kinds of regulated PFAS stay below mandated thresholds. The limit is 4 parts per trillion for PFOA and PFOS, the two most common types of forever chemicals, and 10 parts for trillion for the other three types of PFAS. Noting “the latest science showing that there is no level of exposure to these contaminants without risk of health impacts, including certain cancers” in a press release, the EPA is also setting a “non-enforceable health-based goal” of zero for PFOA and PFOS. According to the EPA, by reducing exposure to PFAS, this final rule will prevent thousands of premature deaths, tens of thousands of serious illnesses, including certain cancers and liver and heart impacts in adults, and immune and developmental impacts to infants and children.

It is unknown whether the Trump Administration will make any significant revisions to the 2024 standard. On one hand, Lee Zeldin was appointed by President Trump to be the EPA Administrator and recently received Senate confirmation. Although some think tanks have recommended policy priorities for the EPA that include revising “groundwater cleanup regulations and policies to reflect the challenges of omnipresent contaminants like PFAS” and revisiting “the designation of PFAS chemicals as ‘hazardous substances’ under CERCLA”, it is far from clear that the second Trump administration will pursue a reversal of the PFAS regulations put in place by the Biden administration in 2024. Indeed, Mr. Zeldin, during his service in the U.S. House of Representatives, supported legislation that never became law regulating PFAS in drinking water. In addition, President Trump’s first administration pursued PFAS regulation to a different degree than the Biden administration yet nevertheless held itself out as “aggressively addressing per- and polyfluoroalkyl substances (PFAS)” as an “active and ongoing priority” of the EPA. In accordance with President Trump’s January 20, 2025 Executive Order issuing a regulatory freeze, the Trump administration withdrew an EPA rule that was under review and set forth proposed limits on PFAS in wastewater. The full extent of the Trump administration’s policies on PFAS will become apparent as the new administration continues to take shape.

On the other hand, in March of 2025 the Trump EPA moved, without opposition, to place two high-profile cases challenging the Biden era regulations on hold for 60 days, citing the need for new agency leadership to be briefed and review the contested rules. The D.C. Circuit approved both requests, pausing litigation while the administration evaluates whether to maintain, modify or abandon these PFAS regulations. The current EPA’s requests underscore a period of regulatory uncertainty as the Trump administration reconsiders the Biden-era approach to PFAS. Whether the administration will seek to roll back the rules—and whether courts will ultimately uphold its decisions—will shape the future of PFAS liability for businesses, utilities and other stakeholders.

California:

As always, California leads the pack on environmental and safety legislation when it comes to PFAs. The following is an example of recent PFAS legislation enacted by California in the past few years:

  • Beginning January 1, 2023, the State of California has prohibited the distribution and sale of food packaging containing regulated PFAS chemicals pursuant to AB 1200. This includes food and beverage containers, take-out food containers, wrappers, utensils, straws, disposable tableware, and more. The same law also requires cookware manufacturers to include a list of intentionally added PFAS chemicals on their website by January 1, 2023, and on product labels by January 1, 2024.
  • Since July 1, 2023, the state has prohibited the distribution and sale of juvenile products containing regulated PFAS chemicals pursuant to AB 652. These products are described as “a product designed for use by infants and children under 12 years of age,” including items such as cribs, strollers, and car seats. The law also requires that juvenile product manufacturers use the least toxic alternative when replacing PFAS chemicals in their goods.
  • In September of 2022, Governor Newsom chaptered two more PFAS regulation bills that went into effect on January 1, 2025.
    • The first, AB-1817, prohibits the manufacture, distribution, sale, or offer of textile articles containing regulated PFAS chemicals. The bill also requires textile manufacturers to use the least toxic alternative when replacing PFAS in their products and to provide textile distributors with a certificate of compliance affirming that their products do not contain any regulated PFAS. The bill gives different guidance for “outdoor apparel for severe wet conditions.” These products rely heavily on PFAS chemicals for waterproofing, so finding a suitable alternative will take more research and development time.
    • The second, AB-2771, prohibits the manufacture, sale, delivery, holding, or offer of cosmetic products containing intentionally added PFAS chemicals. This strengthens a previous cosmetics regulation already set for January 1, 2025.
  • In 2024, Governor Newsom signed into law AB 347. This statute gives California’s Department of Toxic Substances Control (DTSC) enforcement authority over existing PFAS restrictions on textile articles (AB 1817), juvenile products (AB 652), and cookware and food packaging (AB 1200) (the “covered products” under the “covered PFAS restrictions”). AB 347 also requires manufacturers of covered products to submit a registration to DTSC by July 1, 2029, pay a registration fee, and submit a statement of compliance to DTSC confirming that each covered product complies with the covered PFAS restriction on the sale or distribution of the product that contains regulated PFAS. DTSC will begin enforcing this legislation after July 1, 2030. Given DTSC is the enforcement authority for the above-mentioned covered products, we expect DTSC to release guidance on interpreting AB 1817, AB 652, and AB 1200 in the future.
  • Also in 2024, Governor Newsom signed into law AB 2515. This statute prohibits companies from manufacturing, selling, or distributing menstrual products that contain regulated PFAS. “Regulated PFAS” means PFAS “intentionally added to a product” as of January 1, 2025, and will mean “PFAS in a product at or above a limit determined by the department” beginning January 1, 2027. Like AB 347, AB 2515 requires manufacturers to register with DTSC by July 1, 2029, pay a registration fee, and submit a statement of compliance confirming that menstrual products do not contain regulated PFAS.

We expect DTSC to initiate the rulemaking process for both statutes, which would include regulations regarding accepted testing methods for PFAS levels in menstrual products and third-party laboratory accreditations, and regulations to implement, interpret, and enforce the statutes. Both statutes require DTSC to adopt these regulations before January 1, 2029.

Notable litigation involving PFAS

The MDL in South Carolina District Court

As mentioned above, several thousand lawsuits have been filed by persons alleging injuries caused by exposure to PFAS and also by municipalities and water districts seeking damages from chemical companies due PFAS contamination of water supplies. The cases have been transferred to the United States District Court for the District of South Carolina under the multi-district litigation (“MDL”) process. The cases are entitled Aqueous Film-Forming Foams (“AFFF”) Products Liability Litigation. These lawsuits are divided into three major categories: water contamination, firefighting foam, and drinking water personal injury. Although all three types of lawsuit are part of the MDL in South Carolina under the same judge, they differ in terms of legal arguments, plaintiffs, and settlement progress:

  • Water Provider Lawsuits: Filed mainly by municipalities and water providers claiming that PFAS have contaminated their drinking water systems. These lawsuits have already resulted in major settlements to be used to fund water filtration systems, environmental monitoring, and remediation.
  • Firefighting Foam Lawsuits: Filed mainly by or on behalf of firefighters exposed to PFAS in AFFF. This category of firefighting foams has been widely used for military, industrial and civilian applications.
  • Drinking Water Personal Injury Lawsuits: Filed mainly by individuals claiming to have developed cancer as a result of drinking PFAS-contaminated public water supplies. The cases primarily target PFAS and AFFF manufacturers but may also name a public water utility as a defendant.

Verdicts and settlements

The following are recent settlements and verdicts involving PFAS.

  • In 2023, 3M Company agreed to pay a $10.3 billion settlement with public water suppliers over similar claims. That settlement was approved in March of 2024. The settlement provides funding for public water suppliers across the country for PFAS treatment technologies without the need for further litigation, and provides funding for eligible public water suppliers that may detect PFAS in the future. As part of the settlement 3M agreed said the company plans to “exit all PFAS manufacturing by the end of 2025.”
  • In 2023, Dupont/Chemours and Corteva reached an agreement in principle to comprehensively resolve all PFAS-related drinking water claims of a defined class of public water systems that serve the vast majority of the United States population. The companies will collectively establish and contribute a total of $1.185 billion to a settlement fund (“water district settlement fund”). Contribution rates will be consistent with the binding Memorandum of Understanding between the companies reached in January 2021, with Chemours contributing 50 percent (about $592 million), and DuPont (about $400 million) and Corteva (about $193 million) collectively contributing the remaining 50 percent. The settlement was approved by the MDL court in 2024.
  • In 2024, Tyco Fire Products, a company that specializes in fire protection, reached a $750 million settlement with public water systems grappling with the repercussions of PFAS. The money will be distributed among the cities that have filed lawsuits to remediate PFAS contamination, though it was not immediately clear which communities could see money from the settlement.
  • In 2024 BASF Corporation (“BASF) agreed to a settlement with a nationwide class of public water systems that detected PFAS in their drinking water sources, which they allege to be associated with the use of AFFF products. Some of the AFFF products at issue in the litigation were made using a surfactant produced by Ciba Specialty Chemicals (“Ciba”), which BASF acquired in 2009. In 2003, years before BASF acquired Ciba, Ciba sold that business line to another company. Under the terms of the agreement, BASF has agreed to contribute $316.5 million ($312.5 million to resolve the PFAS claims, plus $4 million toward settlement administration costs). The settlement releases these claims against BASF, Ciba, and other related corporate entities.
  • $950,000 Settlement (California): A male patient presented to his primary care doctor with signs and symptoms of testicular cancer, but the doctor failed to diagnose the cancer until it had already advanced to stage 4 and spread. The wrongful death lawsuit alleged that the doctor was negligent for failing to diagnose and treat the testicular cancer earlier.
  • $12,500,000 Verdict (Ohio): The plaintiff, an adult male, reportedly developed testicular cancer as a result of drinking water being contaminated by the release of ammonium perfluorooctanoate (C-8) from defendant E.I. du Pont de Nemours and Company’s Washington Works Plant located in West Virginia. The plaintiff contended that C-8 is a proven toxic and hazardous chemical used in the production of Teflon, which the defendant allowed to be released into waters that were used for human drinking.
  • $375,400 Settlement (Pennsylvania): A 31-year-old man underwent a testicular ultrasound to check whether a lump in his testicle was cancer. The ultrasound confirmed that the lump was cancerous, but that was not communicated to the patient for six months, causing a delay in his treatment.
  • An Ohio jury in 2020 ordered DuPont/Chemours to pay $50 million to a couple who blamed their cancers on PFAS-tainted drinking water.
  • In 2017, DuPont/Chemours agreed to a $670 million settlement to resolve PFAS suits filed by 3,500 people in Ohio.

To date, no personal injury case in the MDL has gone to trial. However, the first trial date is set for October 6, 2025, focusing on cases related to kidney and testicular cancer, stemming from PFAS contamination from firefighting foam. If juries reject the link between PFAS exposure and illness, companies and insurers could avoid massive payouts. If plaintiffs start winning big verdicts, however, the floodgates could open.