Dozens of States Have Introduced Policies to Combat PFAS Contamination, The Lancet Reports

Chemical industry lobbyists pushed back against the efforts this month in a letter to President Biden, complaining that “overly broad PFAS restrictions” could hurt U.S. manufacturing.

A new report reveals that most states are moving to put in place bans or restrictions that will curb the risks associated with exposure to per- and polyfluoroalkyl substances (PFAS), which have caused widespread water contamination in communities nationwide and have been linked to a number of different health risks.

This year, dozens of states are expected to enact policies intended to combat the continuing spread of so-called “forever chemicals”, targeting food packaging, firefighting foam and safety equipment, according to a report published on February 17 in The Lancet.

PFAS include a group of over 9,000 man-made substances that have been used for decades, to resist grease, oil and water. However, they are known to persist in the environment and build up in the human body, and there is growing evidence linking exposure to a myriad of adverse health effects, including testicular cancer, kidney cancer, ulcerative colitis and other side effects.

Most of the PFAS water contamination problems in the U.S. have been linked to aqueous film-forming foam (AFFF), which has been widely used by the military and firefighters for decades to fight fuel-based fires, but contains large volumes of the chemicals. During training and response exercises, these PFAS chemicals have been dumped into the environment and local water supplies, particularly around military bases, airports and firefighter training locations.

3M Company, DuPont, Chemguard, Inc., Tyco Fire Products and other manufacturers of chemicals and fire safety products now face thousands of PFAS water contamination lawsuits brought by local water providers and individuals diagnosed with various types of cancer. The companies also face hundreds of firefighter cancer lawsuits over exposure to AFFF, and the litigation has further increased concerns about the long-term risks associated with use of the products.

The Lancet report is based on an analysis of pending state legislation by the group Safer States. According to the findings, 35 U.S. states are considering PFAS restrictions and other control measures this year. These include bans on PFAS in food packaging, firefighting foam and firefighter protective equipment, and also contain measures that would increase the monitoring and testing of PFAS in water and sewage, the report indicates.

In addition, while previous PFAS clean-up and control efforts have focused on specific compounds, such as perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), states now seem to be focusing their attention on the entire class of chemicals as a whole.

Safer States reported that this seems to be a response to chemical manufacturers substituting the singled-out PFAS chemicals with other potentially toxic compounds that are less studied; a practice the group called “a strategy of regrettable substitution.”

Already this year, Ohio Governor Mike DeWine has announced a plan to collect and destroy that state’s supply of PFAS-laden firefighting foam as part of an AFFF Takeback Program.

In addition, Iowa lawmakers just this month introduced new state legislation calling for a ban on the purchase of PFAS-containing firefighting foam by the beginning of 2026.

Federal Regulators Also Targeting PFAS Contamination

The Lancet report notes that as part of a concentrated policy effort by the Biden Administration, nearly two-dozen federal agencies and offices, led primarily by the U.S. Environmental Protection Agency (EPA), are currently working on measures targeting PFAS concerns.

“These efforts are led by the Environmental Protection Agency (EPA), which says in early 2024 it will implement an extremely low-level drinking water contamination rule,” the report notes. “Citing studies indicating that PFOA and PFOS exposure above certain levels might result in adverse health effects, including developmental effects to fetuses during pregnancy or to breastfed or formula-fed infants, cancer, and immunological effects, the EPA says its drinking water rule will ‘save thousands of lives and prevent tens of thousands of avoidable illnesses, including in small, rural, and disadvantaged communities’.”

A study released in December by the Environmental Working Group indicated that at least 44 million Americans have drinking water contaminated with PFAS. The environmental group warned that at least 854 water systems nationwide are combatting PFAS contamination.

Despite the severe health risks associated with PFAS water contamination, chemical industry lobbyists are pushing back against the efforts by the government and states to protect residents from the harmful side effects.

On February 8, the American Chemistry Council sent a letter (PDF) to President Joe Biden, arguing that the push against PFAS and other chemical safety regulations are putting an undue burden on the industry. The letter accuses U.S. regulators of putting in place “overly broad PFAS restrictions” as well as restrictions on ethylene oxide, and formaldehyde, which the industry indicates are used in the manufacturing of semiconductors.

February 2024 PFAS Exposure Lawsuit Update

The state and federal government emphasis on reducing PFAS exposure comes amid a growing number comes as more consumers and municipalities seek restitution for PFAS damages and contamination in the U.S. court system.

Given common questions of fact and law presented in thousands of lawsuits against AFFF manufacturers over the cancer risks, coordinated pretrial proceedings have been established in the federal court system before U.S. District Judge Richard M. Gergel in the District of South Carolina, where the claims are currently centralized for discovery and a series of early bellwether trials.

Although the manufacturers have reached proposed settlement over damages sustained by local water suppliers, who have been left with the costs associated with cleaning up the toxic chemicals, there have been no settlements in PFAS injury lawsuits brought by individuals exposed to the chemicals through drinking water, or firefighters directly exposed through AFFF foam. The claims involve individuals diagnosed with kidney cancer, testicular cancer, ulcerative colitis and other injuries.

Last year, Judge Gergel directed the lawyers involved in the litigation to select a group of 28 representative personal injury claims for an AFFF injury bellwether pool, involving plaintiffs who say they were exposed to chemicals that contaminated drinking water.

However, the first cases are unlikely to go before a jury for several years. In addition, the outcome of these claims will not have any binding impact on the other individual lawsuits, although they will be closely watched and may influence how much manufacturers may pay to settle lawsuits brought by other plaintiffs.