We previously wrote about the growing popularity of PFAS litigation. Cases are currently working their way through the courts and dismissals in several jurisdictions are contributing to the growing body of case law. A recent memo from O’Melveny discusses the current litigation trends. Many cases are being dismissed on the pleadings as courts are reluctant to hold companies responsible for PFAS that were unknowingly added to products. Additionally, some courts have stated that current evidence is not sufficient to demonstrate that certain uses of PFAS are harmful to human health. However, this may change as new laws regulating PFAS enter into force. The memo notes that:
“These cases are likely to become more complex as federal and state PFAS regulations and statutes emerge. For example, on January 1, 2023, the State of California’s prohibition of the distribution and sale of food packaging containing certain PFAS chemicals went into effect, placing restrictions on sellers of food and beverage containers, take-out food containers, utensils, straws, and more. This is the first of four new PFAS prohibitions that will go into effect within the next two years in California, while other states including Maine, Minnesota, and New York have several PFAS-related bills in the pipeline.”
In addition to new state laws, the EPA is requiring manufacturers and importers of PFAS to file reports with the agency. Those reports must include information related to the environmental and health effects of PFAS. Having this information compiled in one database may give plaintiffs new avenues for proving the harmful effects of PFAS and result in more cases moving past the initial phases of litigation.
PFAS contamination is a cross-cutting issue that affects many different sectors. Food and beverage, cosmetics, and manufacturing all have unique PFAS concerns. The regulatory and litigation risks associated with PFAS are rising and some companies may not even know that their products contain PFAS. Companies should watch this area of regulation carefully and conduct product testing when necessary to determine the presence of PFAS – they may be in places/products you don’t expect.
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