The specter of widespread litigation over per- and polyfluoroalkyl substances is looming large for insurers and manufacturers, drawing comparisons to the asbestos lawsuits that plagued the industry for decades. These forever chemicals, named for their persistence in the environment and human body, are the subject of growing legal action as awareness of their potential health risks increases and regulatory scrutiny intensifies.
Alex Potente, a partner at law firm Clyde & Co, notes that the plaintiffs' bar and consumers are becoming more cognizant of the risks associated with PFAS. He explains, The science is becoming better understood, and there have been much more aggressive actions by state and federal regulators to recognize and identify PFAS as a contaminant of concern. These factors are giving rise to more litigation. This growing awareness is fueling a surge in lawsuits that could potentially overwhelm insurers and manufacturers in a manner reminiscent of the asbestos litigation crisis.
PFAS comprise a large family of over 10,000 synthetic chemicals that do not occur naturally and are known for their extreme persistence in the environment. Scientific studies have linked PFAS exposure to a range of serious health issues, including cancer, high cholesterol, thyroid disease, liver damage, asthma, allergies, and reduced vaccine response in children. Additionally, PFAS have been associated with reproductive problems such as decreased fertility, newborn deaths, low birth weight, birth defects, and delayed development. The pervasive nature of these chemicals in everyday products and their potential health impacts have made them a prime target for legal action.
The issue of PFAS contamination has gained global attention in recent months. In Europe, a coalition of non-governmental organizations reported detecting PFAS-linked substances in a large sample of drinking water. This discovery prompted calls from organizations like PAN Europe for urgent interventions, including a rapid ban on PFAS pesticides. Meanwhile, in the United States, individual states are taking action. Pennsylvania, for instance, has proposed House Bill 2238, which aims to ban the use of PFAS in a wide range of products including cleaning supplies, carpets, cookware, cosmetics, and food packaging by 2027.
A significant development in the PFAS legal landscape occurred in April 2024 when public drinking water systems in California filed a lawsuit against manufacturers of these chemicals. What sets this lawsuit apart is its citation of new Biden administration regulations that establish strict limits for PFAS in drinking water. Legal experts suggest that this case could serve as a template for how drinking water systems might leverage these court regulations to their advantage. The new rule creates an ambiguous standard for acceptable PFAS levels in drinking water, potentially opening the door for more litigation.
The emerging legal actions surrounding PFAS bear striking similarities to the asbestos litigation that has cost the insurance industry billions of dollars over several decades. Like asbestos, PFAS are widely used in various industries and consumer products, and their health effects may not become apparent for years after exposure. This latency period, combined with the chemicals' widespread use, creates a potential for long-tail liabilities that could strain insurers' resources for years to come.
Insurers are now faced with the challenge of assessing and managing their potential exposure to PFAS-related claims. This task is complicated by the evolving scientific understanding of PFAS health effects and the changing regulatory landscape. As more states and countries implement stricter regulations on PFAS use and cleanup, the potential for liability expands. Insurers may need to revisit their policy language, exclusions, and pricing strategies to account for this emerging risk.
The PFAS litigation landscape is still in its early stages, but the parallels to asbestos litigation are clear. As awareness grows and more lawsuits are filed, insurers and manufacturers alike will need to carefully monitor developments in PFAS science, regulation, and case law. The potential for widespread, long-term litigation underscores the importance of proactive risk management and the need for insurers to stay ahead of this evolving issue. The coming years will likely see a significant increase in PFAS-related legal actions, potentially reshaping the liability insurance landscape in ways reminiscent of the asbestos crisis.
