As a council member of a global network of subject matter experts, a noticeable trend has emerged in the global network of subject matter experts. Requests for input regarding per- and polyfluoroalkyl substances (PFAS), both from a litigation and an environmental perspective, have been coming in from investors, corporations, and consulting firms. With heightened media coverage specific to PFAS, many are looking to “read the tea leaves” about the future of these chemicals, which have been found in the drinking water of over 30 communities around the country.
PFAS concentrations can build up quickly in the environment and people or animals who consume too much of these chemicals can suffer potentially life-threatening consequences. The compounds have been found in a number of common household items like non-stick cookware, firefighting foams, and some food packaging articles. Historically popular power brands such as Teflon (Dupont), Scotchgard (3M) and Gore-Tex (W.L. Gore) have been described as bioaccumulative.
According to the Environmental Protection Agency (EPA), people shouldn’t be exposed to a concentration of PFAS higher than 70 parts per trillion (ppt). But a draft report from the Department of Health and Human Services suggests that threshold may still be far too high. Individual states often put the safe drinking threshold much lower when they test for the five most ubiquitous PFAS chemicals.
3M, one of the first companies to use PFAS chemicals, settled an eight-year-long lawsuit withMinnesota in 2018 for $850 million. The state alleged the company knew it was dumping toxic chemicals into waters around the Twin Cities for decades, but hid and distorted the scientific evidence from regulators. Elsewhere, New York’s Attorney General is suing The Chemours, 3M, DuPont de Nemours Inc. and other companies for their alleged role in making and selling chemicals that are environmental contaminants. This said, chemical manufacturer 3M has testified before Congress that there is not conclusive evidence that PFAS cause health problems. In a recent congressional hearing, Denise Rutherford, 3M’s senior vice president of corporate affairs said, “The weight of scientific evidence has not established that PFOS, PFOA, or other PFAS cause adverse human health effects.”
Aqueous film-forming foam, known as AFFF, contains PFOS, a type of PFAS commonly found in contamination from the use of firefighting foam. The chemicals are a problem on military bases, as well. A March 2018 report from the Department of Defense revealed at least 90 Air Force, Army, and Navy bases have groundwater levels of the chemicals higher than what’s considered safe by the EPA.
Across the pond, the European Union will begin implementing significantly tighter regulations around these chemicals. Around 140,000 chemical substances have been registered under REACH by companies producing and using them. Over 150 chemicals have been classed as “substances of very high concern” and companies must be authorised to use these. Long term, these substances will need to be substituted for less harmful ones. New measures to regulate PFAS will be implemented inJuly 2020, which will affect many products placed on the market in Europe. Additionally, there are proposals looking for a total (non-essential) ban of the broader PFAS as a class by 2030.
At Match Point Strategies, we will continue to monitor the regulatory evolution of these chemicals, many of which have been in use for over fifty years. Interested in learning about the regulatory changes that might affect your business? Send us a note to schedule a consultation with us!
Editor’s Note: The author has declined to provide SME insight of this matter.