Lawsuits, insurance may drive PFAS use even if regulations change

Baltimore — Plastics companies should prepare for lawsuits and pressure from insurance companies around so-called "forever chemicals," with the courts and product liability potentially carrying more long-term risk for the industry than government regulations.

At least that was a view from some at a technical conference, "Per- and Polyfluoroalkyl Substances in the Plastics Industry," organized by the Society of Plastics Engineers Oct. 29-30 in Baltimore.

More than 150 industry managers, scientists and executives gathered to look at the challenges and opportunities in finding alternatives to PFAS chemicals and fluoropolymers that companies heavily rely on, but that are facing increased scrutiny from governments and the public over health concerns.

One researcher who tracks the science, lawsuits and business side of PFAS predicted that the power of federal agencies like the Environmental Protection Agency will be limited by the Supreme Court, which in June overturned the Chevron doctrine, a 40-year-old legal standard that deferred to federal agencies in interpreting ambiguous laws.

But Matthew Von Hendy, who publishes "The Business of PFAS" and other newsletters, said consumer demand for PFAS-free products and lawsuits from the public against companies will step into that regulatory gap in the U.S.

"There are new plaintiff suits being developed almost every week, and there are new strategies being developed," said Von Hendy, who gave the conference's closing address. "It's only a matter of time before one of those plaintiffs' suits is going to be successful getting a major damage award against companies using PFAS in their products, including in the plastics industry."

Similarly, an executive with plastic container maker CKS Packaging said product liability insurance companies are starting to exclude PFAS from their coverage, and they believe that will be a bigger driver than government policy in shifting the market.

"We don't think it's going to be state and federal regulations that are going to drive this," said Mike Bonsignore, chief sustainability officer for Atlanta-based CKS. "We think what's going to drive this is going to be the insurance industry."

Bonsignore made his comment publicly in the question-and-answer session for Von Hendy's talk. He also spoke in a separate presentation at the conference for a non-fluorination process for plastic containers developed by BP Polymers LLC and used by CKS.

Von Hendy said he agreed with Bonsignore's point on liability, adding that insurance companies are telling him they're starting to exclude PFAS from their coverage because "they're worried about exposure from insurance claims."

While the conference included several presentations on the state of PFAS regulations, Von Hendy said he sees rulings from a conservative Supreme Court ultimately leading to many PFAS regulations being overturned.

"Most people comment on PFAS regulation as a driver for the impending storm," Von Hendy said. "I think that's a red herring. … The regulatory authority for most agencies here in the U.S. is going to be dismantled in the next two or three years.

"It's already happening with a very conservative Supreme Court," he said. "I think that most PFAS regulations are going to be severely limited or thrown out."

But he said liability lawsuits from the public will step into that gap and grow in number and importance, as will consumer demand for PFAS free products.

He said some of that will flow from social media amplifying public concerns around "forever chemicals."

"Part of what's happening is PFAS is the first social media class of emerging contaminants," Von Hendy said. "It creates a higher level of awareness among consumers than ever before."

"This is really an underlooked part, the consumer demand," he said. "This will affect the plastics industry and engineering as people are looking truly for PFAS-free alternatives to what's out there."

Other speakers said the government regulatory picture for PFAS remains complicated, with both an upswing in new regulations and, especially at the state level, a lot of new legislation that sometimes sees states taking different approaches.

But there's also signs of growing harmonization among states, as they start to face the complexities of the science in regulating PFAS chemicals, some speakers said.

Jay West, senior director of chemical products and technology at the American Chemistry Council, said states could pick up on exemption language for "currently unavoidable uses" in their legislation, echoing what's been done in Maine, which is one of the leaders among states.

That sends an important signal to companies on how to position their products for regulatory exemptions, he said.

"What I want to tell you is that because states are copycats, other states may pick up the CUU kind of provisions in their laws," West said. "Maine has given you a bit of a signal about how to start preparing your argument now for why your product can meet the 'essential' phrase that's in the CUU definition."

Earlier this year, Maine's legislature made significant changes to its PFAS law, after realizing that state agencies would have a hard time implementing the 2021 law, West said.

He said the state moved back the CUU timeline to 2032, from 2030, and added reporting language allowing companies to rely on "known or reasonably ascertainable" standard for reporting to government agencies about PFAS in their products.

West called that a positive change, giving companies some help if, for example, their suppliers decline to give them information on PFAS, citing confidential business information.

He also told the audience that ACC continues to tell government regulators they cannot lump all PFAS-related chemicals into one class and regulate them the same.

"Our big message when we go to speak to regulators and when we talk to downstream user organizations is that all PFAS are not the same," West said. "We are completely broken records about this."

"Those of you who might accompany colleagues or yourselves to go speak to government officials, this is really where the conversation needs to begin, that all PFAS are not the same, because a lot of people making decisions about PFAS do not know what they do not know," West said.