Written By: Jack Indzonka
Last November, the Sixth Circuit Court of Appeals heard a class action lawsuit against 3M and nine other manufacturers of per- and polyfluoroalkyl substances (PFAS) alleging negligence, battery, and conspiracy claims under laws of Ohio and other states, seeking declaratory and injunctive relief including medical monitoring.[1] The lead plaintiff was Ohio firefighter Kevin Hardwick, who had trace quantities of five PFAS in his blood stream, believed to have originated from the firefighting foam he used in the course of his work.[2] The court found several issues with this claim, one of which was that it created a class of person that encompassed the entire population of the United States, as every citizen currently has similar amounts of PFAS in their bloodstream.[3] Additionally, Hardwick was unable to identify which of the ten companies were responsible for the PFAS in his blood stream, leading the court to determine that he did not have standing. The case was remanded with instructions to dismiss.[4] While it seemed like the court did not take much issue with every American having these chemicals in their blood stream, any reader cannot help but ask the question of what exactly are forever chemicals and how harmful are they to people and the environment?
PFAS are a class of manmade chemicals that do not break down in the environment or inside of our bodies, which earns them the nickname “forever chemicals.”[5] They are water, stain, heat, and grease resistant which is why companies use them for a great variety of consumer goods, such as nonstick cookware, grease-resistant food packaging, clothing, cosmetics, toilet paper, automobile interiors, medical devices, batteries, paints, building materials and many other products.[6] This long list clearly demonstrates that it is currently impossible to avoid coming into contact with these chemicals as they are present in every aspect of an individual’s lifestyle.
According to Erik D. Olson, the strategic director of health and food of the Natural Resources Defense Council, PFAS are dangerous for three reasons: “First, the structure of PFAS means they resist breakdown in the environment and in our bodies. Second, they move relatively quickly through the environment, making their contamination hard to contain. Third, for some PFAS, even extremely low levels of exposure can negatively impact our health.”[7]
PFAS can cause a wide range of health risks in both humans and animals including kidney and testicular cancer, hormone disruption, liver and thyroid problems, interference with vaccine effectiveness, reproductive harm, and abnormal fetal development.[8] Clothing manufacturing is one of the main ways that PFAS interact with people and the environment. There is pollution at every stage of production starting with the factories that contaminate the air, water, and soil of the surrounding environment. Products are then coated in PFAS and worn by consumers causing direct exposure. Whenever the apparel is washed the chemicals travel through water, and at the end of their lifecycle when they are dumped into landfills or incinerated they leak the chemicals into the environment and are further spread across the planet by rain and ocean waves.[9]
In all 50 states there are water systems that have been contaminated with PFAS.[10] The contamination mostly came from industrial dumping of PFAS directly into bodies of water which is still mostly legal. The Environmental Protection Agency (EPA) has proposed stricter laws on six types of PFAS in drinking water which partially addresses the issue, but there are still thousands of other PFAS that need to be regulated.[11]
The environmental crisis caused by PFAS is a hidden threat and while Hardwick’s case failed, there is prior history of banning chemicals such as the 2002 phaseout of U.S. production of PFOS as well as the 2015 phaseout of domestically produced PFOA, which was used in the making of Teflon pans and identified as a possible carcinogen in humans.[12] These prior bans give hope that the issue can be tackled. Several states have begun to establish tap water standards for certain PFAs and others have banned them from food packaging and other materials.[13] Some companies like Home Depot, Lowe’s and Patagonia are also trying to do their part by making promises to remove the chemicals from their products. While no substantial action has yet been taken by the government, the EPA did release a PFAS strategic roadmap which hopefully will be acted upon in the near future.
[1] Debra Cassens Weiss, 6th Circuit Rejects Huge Class Action Filed against Makers of ‘Forever Chemicals.’ ABA Journal, (Nov. 28, 2023), www.abajournal.com/news/article/6th-circuit-rejects-huge-class-action-filed-against-makers-of-forever-chemicals.
[2] Id.
[3] In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 87 F.4th 315 (6th Cir. 2023)
[4] Id.
[5] Protecting against ‘Forever Chemicals.’ Harvard T.H. Chan School of Public Health, (Mar. 16, 2023), www.hsph.harvard.edu/news/hsph-in-the-news/protecting-against-forever-chemicals/#:~:text=Known%20as%20%E2%80%9Cforever%20chemicals%E2%80%9D%20because,%2C%20cosmetics%2C%20and%20toilet%20paper.
[6] Id.
[7] Molly M. Ginty & Courtney Lindwall, ‘Forever Chemicals’ Called Pfas Show up in Your Food, Clothes, and Home, National Resources Defense Council, (Apr. 12, 2023), www.nrdc.org/stories/forever-chemicals-called-pfas-show-your-food-clothes-and-home.
[8] Id.
[9] Id.
[10] Id.
[11] Harvard, supra note 5.
[12] Ginty & Lindwall, supra note 7.
[13] Id.