Welcome to the first Chemical Currents of 2023! This edition is our Year In Review (which we operate on the lunar cycle). So we’ll recap the key PFAS developments from the year of the tiger (2022) and preview what we have our eye on for the year of the rabbit!
2022 Year In Review
Focus On Litigation
Hardwick Class Action Is Before The Sixth Circuit
One of the biggest cases to watch in 2022 was the Hardwick class action. Back in March, Judge Edmund Sargus of the Southern District of Ohio issued an 49-page opinion certifying a class in Hardwick v. 3M Co.
Plaintiffs in this class action are not seeking compensatory damages for personal injuries. Rather, they seek: (1) medical monitoring; and (2) the establishment of an independent panel of scientists to study the effects of PFAS. The class definition was broad: “Individuals subject to the laws of Ohio, who have 0.05 parts per trillion (ppt) of PFOA (C-8) and at least 0.05 ppt of any other PFAS in their blood serum.”
The Sixth Circuit unanimously granted interlocutory review of the class certification order. It found that the “extraordinary procedure” of interlocutory review was necessary because “when a district court certifies one of the largest class actions in history, predicated on a questionable theory of standing and a refusal to apply a cohesion requirement endorsed by seven courts of appeals, to authorize pursuit of an ill-defined remedy that sits uneasily with traditional constraints on the equity power and threatens massive liability, such a decision warrants further review.”
Defendants’ opening brief and amicus briefs supporting defendants were filed at the end of December. The response brief is currently due March 3. This will continue being a case we have our focus on into 2023.
Various Types Of Consumer Goods Targeted With Lawsuits
2022 saw many consumer class actions filed based on PFAS. It felt as if no category of consumer good was spared. Here are some examples:
- Food and Food Packaging. Two class action complaints were filed against McDonalds in the Southern and Northern districts of Illinois. One of the complaints alleges: “[E]ach time an American buys a Big Mac, they are exposed to high levels of PFAS.” A similar suit filed against Burger King was later voluntarily dismissed without prejudice.
Illinois is no stranger to PFAS suits. Class action complaints were also filed in the Northern District of Illinois regarding BOOMCHICKAPOP- and Orville Redenbacher-branded microwave popcorn. These two cases focus on statements contained on the popcorn’s packaging. One states “Real, Simple Ingredients. Nothing Fake.” The other states “only real ingredients” and “100% ingredients from natural sources.”
- Cosmetics. A proposed class action complaint was filed against The Clorox Company and The Burt’s Bees Products Company claiming that several mascara and lip gloss products contain PFAS based on testing performed by Mamavation.
- Clothing. Reports of PFAS in menstrual underwear products have led to multiple class action complaints filed against clothing manufacturers. While suits against Thinx were filed in 2020 and 2021, Knix joined the list in 2022, with a PFAS-based complaint filed in the Northern District of California.
Thinx recently reached a class action settlement. Potential class members can submit a claim online for reimbursement for $7 each for at most three pairs of underwear they purchased or a voucher for 35% off a single purchase of up to $150.
Knix has gone on offense, filing a motion for sanctions arguing that the plaintiffs’ attorneys improperly filed their lawsuit based solely on unreliable testing from “Mamavision,” which the plaintiffs’ attorneys did not independently confirm. The company argued: “Plaintiffs and their counsel . . . have no idea whether any Knix product actually contains fluorine or not, let alone the specific type of fluorine (organic fluorine) that can potentially indicate the presence of PFAS. Indeed, they conducted no independent investigation whatsoever to even attempt to confirm the truth of that assertion.”
- Car Seats. A proposed class action complaint was filed the Eastern District of Pennsylvania against Chicco USA, Inc. alleging that certain children’s car seats contain fabrics containing PFAS according to testing performed by The Ecology Center. The court dismissed the complaint, beginning its analysis by noting that the law does not recognize a duty to disclose chemicals used to treat car seats: “To put it simply, the law does not place any obligation on [manufacturers] to proactively disclose to consumers what, if any, chemicals it uses to treat its car seats.”
State AG Actions Filed In Numerous States
Several states’ attorneys general have sued manufacturers over PFAS concerns. As some notable examples:
- Colorado. In February, Colorado’s AG filed a lawsuit against 15 manufacturers of firefighting foam containing PFAS. The complaint seeks a court order requiring the manufacturers to pay for all costs to investigate, clean up, restore and monitor contamination at all sites where the specific PFAS containing firefighting foam (AFFF) was used.
- Illinois. In March, Illinois’ AG filed a lawsuit against a chemical manufacturer pertaining to PFAS handling at one of their Illinois facilities. The complaint alleges that despite being aware of the health and environmental hazards connected to PFAS, the manufacturer downplayed the negative impacts. Illinois has hired outside counsel to function as special assistant district attorneys.
- Wisconsin. In April, Wisconsin’s AG (at the request of Wisconsin’s governor) filed a complaint against almost 20 companies alleging PFAS contamination of water, air, and sediment. The complaint alleges that the contamination would require “billions” to clean up, in addition to seeking punitive damages on the defendant manufacturers.
- Massachusetts. In May, Massachusetts’ AG filed a complaint against more than a dozen manufacturers of firefighting foams that contain PFAS chemicals. The complaint alleges that these companies hid information about the toxicity of PFAS, submitted false information to the EPA, and tried to prevent workers from discussing the risk the chemicals impose.
- California. In November, California’s AG filed a 79-page complaint against 18 manufacturer-defendants related to PFAS, alleging that they pushed a “campaign of deception” for the past two decades regarding the toxic impact of PFAS chemicals.
- Michigan. Michigan would not be left out of the AG lawsuit storm of 2022, filing a complaint against a paper manufacturer seeking damages relating to alleged releases of PFAS into the environment, and seeking a court order for a full investigation to remediate the alleged contamination.
Focus On Regulation
State regulation of PFAS continued to increase in 2022
In 2022, states focused on regulating PFAS in food packaging, drinking water, consumer products, and other areas. The following are some of the states that passed legislation in 2022. The laws join the ranks of similar laws passed in the last few years, as well as those that are pending or expected to be passed in 2023 and beyond. Effective dates for these laws vary, with the earliest already in effect as of December 31, 2022.
- Cosmetics, Personal Care, and Consumer Products. California passed prohibitions on PFAS in apparel, accessories, and handbags (AB 1817) and intentionally added PFAS in cosmetics (AB 2771). On December 30, New York Governor Hochul signed a bill that will prohibit the use of PFAS as an intentionally added substance in apparel (A 07063) and cosmetics (A 08630).
- Colorado (HB 22-1345) also enacted restrictions on sales of consumer products with PFAS such as oil and gas products; carpets or rugs; cosmetics; fabric treatments; juvenile products; textile furnishings; and upholstered furniture.
- Food Packaging. States such as Maryland (HB 0275), Colorado (HB 22-1345), Rhode Island (SB 2044), and Hawaii (HB 1644) now have laws on the books restricting the use of intentionally added PFAS in food packaging.
- Drinking Water. States such as California (AB 178, AB 180, SB 154), Rhode Island (HB 7233), Vermont (H 740), New Hampshire (HB 1185), and Virginia (HB 919) approved funding for monitoring and addressing PFAS in drinking water systems, water treatment plants, and water supplies.
- Soil/Ground Water. Maine passed legislation prohibiting the spread of PFAS-containing sludge and sludge-containing compost as fertilizer (LD 1911). And states including Michigan (SB 0565), Minnesota (HF 3765) and Florida (HB 5001) are providing funding for PFAS remediation programs.
Federal regulation: The EPA began implementation of its PFAS Roadmap
In 2022, EPA began its implementation of its PFAS Roadmap, which was announced at the end of the previous year. In fact, the EPA issued its own PFAS review in its Year of Progress Report.
- EPA Slashed Drinking Water Health Advisories for PFAS. Some of the biggest news to come out the EPA this year was its June announcement of new drinking water health advisories for PFAS chemicals under the Safe Drinking Water Act. The advisories for PFOS and PFOA set in 2016 were lowered from 70 ppt to .02 ppt (PFOS) and 0.004 ppt (PFOA)—an over 99.9% reduction. The EPA also added new interim health advisories for two other types of PFAS: 10 ppt for GenX and 2,000 ppt for PFBS.
The EPA stated: “The updated advisory levels, which are based on new science and consider lifetime exposure, indicate that some negative health effects may occur with concentrations of PFOA or PFOS in water that are near zero and below EPA’s ability to detect at this time.”
The EPA’s health advisories are “not to be construed as legally enforceable federal standards” but rather “describe information about health effects, analytical methodologies, and treatment technologies.” EPA has stated in its Year of Progress Report that proposing enforceable limits is a 2023 priority.
- EPA’s Proposed Designation of PFOS and PFOA as CERCLA Hazardous Substances. Last year the EPA released its proposed designation of the two most well-known PFAS compounds – perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) – as hazardous substances under CERCLA. The EPA has identified completing these designations as a priority for 2023 in its Year of Progress
Chemical Currents covered the news in a Special Edition, providing viewpoints from across the firm on what this means for environmental justice, ESG, mergers, and litigation.
- EPA Added Five PFAS to its Toxics Release Inventory List. Last year, the EPA announced the addition of four types of PFAS (later changed to five) to its Toxics Release Inventory list. The TRI “tracks the management of certain toxic chemicals that may pose a threat to human health and the environment.” Facilities that manufacture, process, or otherwise use chemicals listed on the TRI must submit annual reports to EPA that includes data about such chemicals’ release into the environment and the facilities’ waste management practices. These new additions join the 175 PFAS already added to the TRI list pursuant to the requirements of the 2020 National Defense Authorization Act.
What We’re Watching In 2023
The EPA’s Year In Progress Report identified its 2023 priorities, some of which were discussed above. Those priorities listed are:
- Proposing a National Drinking Water Standard for PFOA and PFOS;
- Completing CERCLA designations;
- Improving chemical data and safety;
- Restricting upstream discharges;
- Addressing PFAS in biosolids;
- Providing public PFAS tools; and
- Continuing to engage with communities.
Specific EPA proposals on our radar include:
- Naming of PFAS as an enforcement priority for 2024-2027
- Ending of de minimis exemption for PFAS Toxics Release Inventory reporting
- RCRA listing of PFOS, PFOA, PFBS, and GenX
- Revisions to effluent limitations guidelines
- Significant new use rule to prevent reactivation of PFAS listed as inactive on the TSCA Inventory
On the state front, we particularly have our eye right now on Maine, California, and New York—each of which have new requirements that took effect at the end of 2022 or beginning of 2023.
- Maine. As discussed in a recent Client Alert, companies doing business in Maine faced a January 1, 2023 deadline to begin reporting the use of PFAS. Maine’s Department of Environmental Protection (“MDEP”) reported to companies that it does not expect to implement rules or the submission platform for reporting PFAS until early in the second quarter of 2023. While MDEP’s difficulties launching its reporting platform will not obviate companies’ need to begin reporting on January 1, the agency indicated that it would consider requests for extensions on an individual-company basis (as opposed to blanket requests). So while substantial uncertainty exists, the PFAS Task Force here at King & Spalding has been helping clients prepare extension requests and evaluate reporting obligations. We are happy to counsel our readers further—just reach out!
- New York And California. As of December 31 in New York and January 1 in California, food packaging that is made of paper, paperboard, or other materials originally derived from plant fibers is prohibited if it contains intentionally added PFAS. In California, the prohibition also applies to food packaging that contains 100 parts per million or more of PFAS, measured as total organic fluorine. The prohibition in both states applies to distribution, sale or offer for sale. And according to California, this includes food or beverage containers, take-out food containers, unit product boxes, liners, wrappers, serving vessels, eating utensils, straws, food boxes, and disposable plates, bowls, or trays. We are keeping our eye on how this is playing out on the ground.
We are also tracking new legislative bills, with roughly forty already proposed since the first of the year.
On an international level, we are focused on two pending developments in the European Union.
- A proposal to restrict PFAS that is expected to be extremely broad
- Review of PFOS and re-review of PFOA by the International Agency for Research on Cancer
Look to forthcoming editions of this newsletter for insights on these and other developments throughout the year.