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On June 15, 2022, the Environmental Protection Agency (EPA) released new health advisories for drinking water relating to four select classes of per- and polyflouroalkyl substances (PFOA or PFOS) —also referred to as PFAS chemicals. Dubbed “forever chemicals,” and found in such common consumer products as shampoo, food wrappers, and non-stick cookware, PFAS chemicals have gained nationwide attention in recent years both for their extreme bio-persistence and their ubiquity in consumer and personal care products.

In a drastic departure from the agency’s 2016 advisory health limit of 70 parts per trillion (ppt) for PFOA and PFOS, the EPA now recommends limits approaching zero (0.004 and 0.02 for PFOA and PFOS, respectively) based on what it claims to be new medical and scientific research. In addition, the EPA went even further and issued health advisories for “GenX” chemicals and perfluorobutane sulfonate (PFBS) (10 ppt and 2,000 ppt, respectively), two additional PFAS chemicals designed to replace PFOA and PFOS, due to growing concern that PFAS chemicals cause adverse health effects. While today’s guidance acts as little more than a recommendation to local leaders, the EPA reports that it is on track to propose mandatory standards in the fall of 2022. Should the recommended health advisory levels be adopted by the still-pending peer review of the Scientific Advisory Board and processed through the executive rulemaking process, the failure of local water authorities to meet these standards will result in financial penalties.

Maintaining PFAS levels below those suggested in the EPA’s recent guidance will be incredibly difficult, and perhaps impossible, for local water authorities. PFAS have earned their designation as forever chemicals due to their inability to naturally degrade over time. This environmental resistance and water solubility of PFAS, coupled with approximately 80+ years of prevalent use in consumer and industrial products, has resulted in their almost ubiquitous presence in global waterways. The burden to finance the testing, construction, maintenance and operation of PFAS removal systems will fall squarely on local water utilities, which must now prepare to develop systems that can meet levels that fall below even the EPA’s ability to detect. Overburdened and underfunded municipalities faced with this dilemma will almost certainly seek to recover these costs from the manufacturers, producers and suppliers of PFAS chemicals and PFAS-containing products.
Continue Reading EPA Hints at Potentially Crippling Regulations to Come Regarding PFAS in Drinking Water

The nationwide campaign against the production and use of perfluoroakyl and polyfluoroakyl-containing products continues in California, with the California assembly passing expansive legislation to ban the use of up to potentially 12,000 separate chemicals in cosmetics.

On May 26, 2022, the California State Assembly passed A.B. 2771. Introduced by assembly member Laura Friedman (D-Glendale), the bill seeks to amend the state’s health and safety code to include a complete ban of personal care products that contain intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS). If, as expected, some version of the proposed amendment is approved by the senate and governor and enacted into law, the proposed amendment would make the express finding that “PFAS have been linked by scientific, peer-reviewed research to severe health problems, including breast cancer and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption.” It would also make the express finding that “PFAS chemicals have been found in a wide variety of cosmetics and personal care products, including foundation, mascara, lipstick, and various eye and face products.” (Proposed Amendment to California Health and Safety Code Section 108981.)

Friedman, along with many consumer rights advocates, praises the bill as “a critical step towards reducing unnecessary exposure.” The proposed bill is highly problematic, however, from the standpoint of the personal care/cosmetics industry, which represents several billion dollars per year in revenue in California alone. First and foremost, A.B. 2771 drastically expands the existing prohibition against the addition of PFAS into cosmetics, seeking to exclude the use of any “fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” While appearing to be fairly tailored to a single class of chemicals, the EPA’s CompTox Chemicals Dashboard: Master List of PFAS Substances currently reports a total of 12,034 chemicals that fall under A.B. 2771’s description. It is currently unknown how the state will go about enforcing the expansive ban and what PFAS, if any, will take priority in their exclusion. It is further unknown what the precise boundaries of the terminology “intentionally added” will be applied.

At this point, the only thing that can be predicted with certainty is that civil litigation is bound to follow the passage of A.B. 2711 in California—most likely in the form of consumer class actions. For, although A.B. 2711 itself does not provide for civil penalties for violations of the proposed act, California’s Unfair Competition Law (Business & Professions Code Section 17200) permits private citizens to seek an injunction and financial restitution against any business for alleged “unlawful” acts. This broad language, combined with the Unfair Competition Law’s four-year statute of limitations, means that certification of a class of consumers for the purchase of PFAS containing cosmetics could theoretically encompass millions of individual plaintiffs. Restitution on a class-wide basis would require disgorgement of four years of profits for a single company. It is therefore of critical importance for companies to remain up-to-date as these developments continue in order to ensure they can adapt early and often to
Continue Reading California Takes Steps To Ban 12,000 Chemicals in Cosmetics; Cosmetic Companies Should Prepare for a Spike in Consumer Class Actions

Massachusetts has officially joined the growing coalition of states—including Colorado, Wisconsin, Michigan and Illinois—who have filed civil suit against the manufacturers and users of poly- and perfluoroalkyl (PFAS) chemicals, also known as “forever chemicals.” On May 25, 2022, Massachusetts Attorney General Maura Healey filed suit against 13 manufacturers of PFAS in firefighting foam. Seeking “costs to clean up and remove, restore, treat, and monitor PFAS contamination and an order requiring the manufacturers to reimburse the state for the damages its products caused,” the suit follows on the heels of last month’s recommendation by the Massachusetts PFAS Interagency Task Force to ban the sale of products with knowingly-added PFAS by 2030, regulate PFAS chemicals as a class and increase public awareness through education. Filed directly in the US District Court for South Carolina, the state’s suit is destined to join the ever-growing number of cases currently consolidated under MDL No. 2873 In re Aqueous Film-Forming Foams (AFFF) Products Liability Litigation.

While damages were not explicitly stated in the filing, Massachusetts Governor Charlie Baker has been quoted as saying, “Since taking office, our administration has provided over $110 million in funding to address PFAS contamination.” Massachusetts’ entry into PFAS litigation is but one of many signals of the ever-increasing concern amongst municipalities and states regarding the long-term cost of PFAS regulation and remediation. While several states have seen success in bringing claims, the total cost of nationwide remediation is unknown.

Unlike the last major wave of state action against the tobacco industry, however, the gathering wave of litigation against the PFAS industry is complicated by the fact that the federal government required many of the products at issue—such as firefighting foam—to incorporate the exact same chemicals the states now allege are unreasonably dangerous.
Continue Reading Massachusetts Files Suit Against PFAS Manufacturers