Shifting PFAS Regulation, Litigation Trends Raise New Challenges

As we enter a new year—with a new administration—the combination of political agendas and recent litigation trends provides insight into the future landscape of regulation and litigation of “forever chemicals” in the US.

President Donald Trump’s pick to lead the Environmental Protection Agency raises questions about whether the administration’s deregulation plans will include the EPA’s progress in regulating per- and polyfluoroalkyl substances. PFAS, a class of chemicals used in a variety of consumer products, has been linked to cancer, liver damage, and other health problems.

Under former President Joe Biden, the EPA restricted companies from starting or resuming the manufacture or processing of 329 PFAS. It also established the first nationwide (and legally enforceable) drinking water standards for six PFAS and invested approximately $50 billion toward this effort. The cost of compliance for water providers has already prompted litigation against the EPA.

New EPA Administrator Lee Zeldin historically voted against federal environmental regulations when he represented New York’s First District in the House of Representatives from 2015 to 2023. However, of the few environmental regulations he supported, those targeting PFAS were among them.

He was one of only 23 Republicans who voted in favor of HR 2467, the PFAS Action Act, in a 241-183 vote. It would have regulated PFAS in drinking water and set drinking water standards had the Senate voted to pass it. Zeldin’s record on PFAS, though limited, suggests PFAS regulation may be one area with fewer rollbacks and deregulation compared to other environmental regulatory areas.

State Action

While the future of PFAS regulation at the federal level remains unclear, PFAS regulations at the state level continue. As of Jan. 1, Minnesota prohibits 11 categories of products that contain intentionally added PFAS from entering the market. Maine now requires manufacturers of products with intentionally added PFAS to report the presence of PFAS in a registry.

New York and California have instituted bans on PFAS in textiles and apparel. And Colorado began prohibiting the distribution and sale of outdoor apparel used in severe wet conditions that contain intentionally added PFAS, unless the article contains certain disclosures.

While the state-level bans on textiles and apparel containing intentionally added PFAS are limited so far, these regulations are expected to affect the broader US market.

Litigation Trends

The recent wave of PFAS litigation has left courts doing their best to apply existing precedent to novel issues, as this newly minted landscape continues evolving.

More recently, this evolution includes questions about how judges interpret scientific results, how plaintiffs choose to plead economic injuries, and how defendants—most recently, consumer product manufacturers—are learning to hedge against potential PFAS liabilities.

Traditional claims involving PFAS focused on contaminated water supplies and exposure to firefighting foam. However, the trend has shifted recently with plaintiffs targeting consumer product manufacturers, alleging the companies fail to disclose on their packaging the presence of PFAS.

More recently, plaintiffs have targeted producers of consumer products branded and advertised using terms such as “all natural,” “pure,” and “organic” yet allegedly packaged in PFAS-containing materials. Some examples of consumer products recently subjected to these lawsuits include popular chocolate candies, baby wipes, and adhesive bandages.

This trending class of claims has been fueled in part by courts’ findings that the plaintiffs can plead purely economic injuries: that consumers wouldn’t have purchased the product, or at least would have paid less for it, had they known it contained PFAS. The increase in putative class actions also has been driven in part by plaintiffs’ allegations these defendants know the products contain PFAS due to having allegedly tested them.

Many of these plaintiffs allege that total organic fluorine testing revealed the presence of PFAS. In evaluating defendants’ motions to dismiss the plaintiffs’ suits, courts in some states (but not others) have found plaintiffs’ allegations about their scientific testing to be enough to overcome the low pleading threshold of a motion to dismiss.

The issue with the courts’ deference, as many defendants have noted, is that the science surrounding PFAS testing isn’t as definitive as plaintiffs suggest in their complaints.

Because PFAS refers to many different types of substances, testing for PFAS isn’t as simple as it might sound. The term covers a large class of synthetic chemicals, some more ubiquitous than others. Although some plaintiffs have dubbed fluorine testing as the gold standard for PFAS sampling, and maintain that it renders dependable results, defendants are questioning the reliability of fluorine testing to quantify the presence of PFAS.

Some courts have agreed with these defendants, including federal courts in California and Washington. One court explained that while fluorine testing can detect many variations of PFAS, it also detects a wide array of fluorine-containing compounds that aren’t PFAS. A result displaying high concentrations of these compounds might not actually have any PFAS at all.

Going forward, other defendants faced with allegations based on fluorine testing and similar methods purporting to identify or quantify PFAS now have some authority to persuade courts to scrutinize the methodologies plaintiffs use to support allegations that they purchased PFAS-containing products.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Xakema Henderson is partner in Akerman’s litigation practice focused on complex commercial matters.

Valerie Lott is an Akerman associate and focuses her practice on insurance coverage litigation in state and federal courts.

Bryce Pilawski is an Akerman associate and focuses his practice on insurance coverage disputes.

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