Per- and polyfluoroalkyl substances, known by the acronym PFAS and better known by the moniker “forever chemicals,” are the focus of rapidly evolving regulatory regimes at the U.S. federal and state levels, which in turn is driving class-action litigation asserting novel theories of liability against manufacturers whose products contain PFAS. Given the ubiquity of the PFAS chemical group and its usefulness to industry, this increased attention impacts manufacturers in nearly every industry: textiles, machinery, automotive, food and beverage, technology, and life sciences. Manufacturers of products containing PFAS must be prepared to respond, now. Nilan Johnson Lewis offers a PFAS product stewardship program to advise companies on PFAS-related regulatory compliance, inventory analysis, supplier communications, and litigation risk management.
PFAS U.S. FEDERAL REGULATION
Regulation at the federal level is driven by the U.S. Environmental Protection Agency in executing a PFAS “strategic roadmap,” a whole-of-nation effort to research the effects of PFAS on health and the environment; restrict and prevent PFAS from entering the air, land, and water; and remediate existing PFAS contamination and hold polluters accountable. Manufacturers of products containing PFAS are not exempt from this regulatory push. For example, by May 2025, all manufacturers and importers of PFAS and PFAS-containing articles will be required to submit to the EPA extensive information about their PFAS use, production volume, byproducts, disposal, and existing information on environmental or health effects. This reporting requirement, issued pursuant to the federal Toxic Substances Control Act, will represent for many manufacturers a first instance in which they must compile and submit information to the EPA. If May 2025 seems like a long time into the future to compile and report this information—it is not.
PFAS U.S. STATE REGULATION
States, in turn, have enacted a slew of laws restricting PFAS in consumer products. Dozens of states have banned PFAS in certain product categories such as food packaging, children’s products, cosmetics and personal hygiene products, and textiles, and/or imposed labeling requirements to advise consumers of the presence of PFAS in products. The State of Maine has led the charge in enacting sweeping PFAS legislation. By January 1, 2025, all manufacturers whose products are purchased by Maine consumers will be required to report copious information to that State’s environmental protection department about PFAS that has been “intentionally added” to their products. And by January 1, 2030, no product containing “intentionally added” PFAS may be sold in Maine unless the use of PFAS in the product is specifically designated as a “currently unavoidable use.” The State of Minnesota followed Maine’s lead in the 2023 legislative session, imposing a similar PFAS reporting requirement effective 2026 and a similar PFAS ban effective 2032.
PFAS LITIGATION AGAINST PRODUCT MANUFACTURERS
The steep rise in PFAS regulation of product manufacturers has coincided with a second “wave” of PFAS-related litigation. While the first “wave” of cases was brought against chemical manufacturers by governments to clean up PFAS contamination in soil or water, this second “wave” targets consumer product manufacturers. Plaintiffs are bringing class-action lawsuits asserting claims of consumer fraud and deceptive business practices, on the theory that the defendant company’s advertisements of a product as “healthy,” “natural,” “safe,” or “sustainable” are false and misleading because the product in question contains PFAS. These classes, if certified, could encompass every consumer who bought products from the manufacturer.
WHAT SHOULD MANUFACTURERS DO?
Manufacturers must take proactive steps to respond to federal and state PFAS regulatory demands, mitigate their risk of litigation exposure, and plan for the day—not so far in the future—when they will need to use alternatives to PFAS in their products. Nilan Johnson Lewis stands ready to offer legal and strategic guidance and assistance. We offer a PFAS product stewardship program to advise companies on the steps they should take to:
- understand their PFAS risk exposure
- develop procedures for regulatory compliance
- investigate PFAS in their products based on internal data and communications with suppliers
- respond to PFAS-related customer audits and consumer or media inquiries
- review their insurance policies for PFAS-specific exclusions, and
- evaluate their advertising and marketing statements about their products.
IN SUM
Regulators and litigation have raised the level of attention on what manufacturers must know and do about PFAS in their products. Nilan Johnson Lewis can help.