As the political landscape shifts in the United States, the future regulation and litigation of per- and polyfluoroalkyl substances (PFAS), also known as “forever chemicals”, remains in focus. Under the previous administration, there was significant momentum towards increasing the regulatory framework around PFAS, especially considering the establishment of nationwide drinking water standards and substantial investment in PFAS regulation. The Environmental Protection Agency’s (EPA) newly appointed Administrator, Lee Zeldin, presents an uncertain direction due to his historically mixed voting record on federal environmental regulations, including those impacting PFAS.
Zeldin’s previous support for the PFAS Action Act, which aimed to regulate these substances in drinking water, provides some indication that PFAS may not face the same deregulatory pressures as other environmental issues. While federal regulation’s direction is still uncertain, states such as Minnesota, Maine, New York, and Colorado have taken an active stance, implementing bans or requiring disclosures for products with intentionally added PFAS.
In parallel with regulation changes, the litigation landscape surrounding PFAS is also evolving. Traditionally focused on environmental contamination from industrial operations and firefighting foams, recent legal actions are increasingly targeting consumer product manufacturers. These cases involve claims of insufficient labeling about PFAS presence in everyday products marketed with phrases such as “all-natural” or “organic”, pushing the boundaries of existing consumer protection law. A notable shift has seen courts allowing claims based on economic injuries, whereby consumers argue they would have either refrained from purchasing or paid less had they been informed of PFAS content.
Amid this litigation, the use of fluorine testing to detect PFAS presence has sparked debate. Plaintiffs often present fluorine testing as credible, yet defendants question its reliability. Courts, including those in California and Washington, have shown ambivalence by acknowledging the test’s capacity to erroneously indicate high PFAS concentrations due to its broad detection of fluorine compounds. Such rulings now equip defendants with grounds to challenge plaintiffs’ methodologies aggressively.
This dynamic legal environment surrounding PFAS demands the attention of corporations and legal professionals as they navigate compliance risks and potential liabilities, particularly given the fluid nature of testing standards and the growing body of state-level regulations. For more in-depth analysis, refer to the full article here.