Pulling the Threads of the ‘Complicated Patchwork of Federal and State Law’ around PFAS Class Action Lawsuits

On January 7, 2025, Lynn L. Bergeson was interviewed by Christopher Bornmann in Pulling the Threads of the ‘Complicated Patchwork of Federal and State Law’ around PFAS Class Action Lawsuits for the 3E blog. Portions of this article covering the current landscape surrounding PFAS class action lawsuits are shared below by permission.

To better understand the current landscape surrounding PFAS class action lawsuits and how companies can protect themselves from litigation, 3E sat down with Lynn L. Bergeson, managing partner of Bergeson & Campbell, P.C., in Washington, D.C.

Lynn has earned an international reputation for her deep and expansive understanding of chemical product governance programs including the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the European Union Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) Regulation.

(This interview has been edited for length and clarity.)

Christopher Bornmann: Your law firm deals with a lot of cases surrounding PFAS and corporate liability. What have you seen are the driving factors behind this recent surge in PFAS litigation?

Lynn L. Bergeson: Several factors have greatly enhanced interest in PFAS and caused this extraordinary uptick in litigation. First, more is known about PFAS health and environmental effects. Second, the European Union’s 2023 proposed ban on PFAS rocked the global chemical community and manufacturing sectors. Preparing for a final rule has invited considerable due diligence, which is an attractive target of litigation discovery. Third, the federal TSCA Section 8(a)(7) PFAS reporting obligation requires domestic entities to identify PFAS in their supply chains to fulfill reporting obligations in 2025, another target of discovery.

In addition, mushrooming state PFAS reporting and product restrictions are focusing consumer attention on PFAS and capturing the attention of the plaintiffs’ bar and contributing to this extraordinary bump in private litigation.

An interesting aspect of this wave of litigation is the growing number of actions brought under state consumer protection laws claiming that the product manufacturer “didn’t tell us that PFAS were included in this product.” Maybe it’s found in a shampoo or mouthwash and the inclusion of detectable levels of PFAS in the product runs afoul of claims that the product is “natural” or “organic.” This is an evolving area of the law and derivative of “failure to warn,” “false and misleading” claims brought under state consumer protection laws. Those will continue.

The plaintiffs’ bar is very smart and is always finding creative ways to ensure claims in lawsuits survive motions to dismiss for failure to state a claim upon which relief can be granted. We see more litigation, not less, in our future, which will make your readers very unhappy, but it is an accurate assessment. At the same time, we wish to make sure that your readers understand the landscape and consider what actions could be taken preemptively to ensure that they do not find themselves in the line of fire.

If you consider the wide diversity of plaintiffs, at some level, every single U.S. manufacturer of any product is at litigation risk. Plainly, some entities are more at risk than others because of the perception that they knew or should have known that the chemicals that they produce, or the products that they make that include one or more PFAS, are capable of causing harm. PFAS manufacturers are on the front line. Interestingly, a lot of these AFFF foam users are government agencies; they might be first responders working for the Department of Defense, for example. How all these conflicting interests sort out down the road legislatively in terms of liability waivers and the granting of immunity from liability will be an interesting topic to monitor in 2025.

CB: What have you seen when it comes to how companies deal with their liability and managing the broader implications of these class action lawsuits?

LLB: Once you are brought in as a member of a class that has been certified for purposes of a class action lawsuit, your ability to extricate yourself from liabilities is very fact dependent. We do not serve as counsel of record in class action suits. We are often brought in to help identify arguments that might be asserted based on the nature of the chemicals involved to try to specify that if there are PFAS in this water [for example], it is not our PFAS because of the chemical’s particular chemical structure and identity.

Truth be told, once an entity is involved in a class action lawsuit — as many of our clients are and not necessarily even hundreds of them, but thousands of them—it becomes a full-time job to manage the company’s assets and minimize the potential hit of these litigations. The lawyers that are tasked with defending clients in these cases do the very best they can. More often than not, however, courts are finding that there is some responsibility for the damage and liability for the alleged harm, whether it is natural resources damages, water remediation, long-term medical monitoring costs for recipients of PFAS-contaminated drinking water, or whatever the allegation of harm may be.

There are no signs of lawsuits abating. There is an effort to secure liability waivers under federal law for certain types of activities, under CERCLA [Comprehensive Environmental Response, Compensation, and Liability Act of 1980], for example. There are all kinds of risk minimization, risk mitigation, legislative, legal, and insurance strategies to consider helping entities diminish their potential liability and minimize the financial hit that a company that has a history with PFAS may experience. This history might include manufacturers of a PFAS substance, the user of a PFAS substance in a manufacturing operation, or the inclusion of a PFAS substance in a product that is made by a company and subsequently marketed to others. Where one falls on that continuum of liability is very fact dependent.

CB: What is the current and anticipated federal regulatory landscape for PFAS that could be driving these lawsuits, and what are the potential impacts of political changes on PFAS litigation and liability?

LLB: At the federal level this past year, the EPA identified PFOA [perfluorooctanoic acid] and PFOS [perfluorooctane sulfonate] as substances under CERCLA. This has caused a great deal of anxiety in the private sector. We expect in 2025 CERCLA actions remediating PFAS contamination and lots of accusations of fault. The incoming Trump administration has vowed to take a look at limiting liability for some entities and slowing down the inclusion of other PFAS species as hazardous substances under CERCLA. Senator Shelley Capito, the Republican from West Virginia who will chair the Senate Environment and Public Works (EPW) Committee, has already expressed concern with the absence of liability waivers for certain categories of municipalities, wastewater treatment facilities, airports, farmers, and others.

In Senator Capito’s view, the possibility of exposing these entities to extraordinary cleanup costs could be catastrophic for the national economy and for the continued availability of the services these entities offer. EPA administrator designate Lee Zeldin, who supported PFAS legislation during his tenure in Congress, is a bit of a mystery on this topic generally. Similarly, HHS Secretary designate Robert Kennedy Jr., is no friend of chemicals in food, presumably including PFAS. Kennedy has certainly made his views known about fluoride in drinking water and is no fan. How these conflicting views sort out is inviting a lot of speculation and uncertainty.

There are a lot of different threads going into the PFAS quilt. It is a complicated patchwork of international, federal, and state law. I think many of our clients are expecting some sort of reprieve from the incoming administration, but a lot of regulation we see is not being driven by the federal government. It is being driven by private litigation, the influence of the proposed European REACH restriction on PFAS, and state law.

CB: We have seen cases, like in Hawaii, where insurance companies are not paying out claims to companies dealing with class action suits for environmental damages. With PFAS litigation on the rise, are you seeing that insurance companies are not necessarily excited about having to pay out for certain liabilities?

LLB: To some extent, it is not unreasonable to sympathize with the challenges faced by the insurance industry because of PFAS claims. In addition to addressing these claims, the insurance industry is also facing calamitous claims resulting from climate change events and catastrophic damage claims. More conservative-leaning courts can be expected to be receptive to the industry’s plight.

CB: Are you saying that more conservative courts are telling insurance companies you do have to cover the damages caused by these lawsuits?

LLB: No, conservative-leaning courts can be expected to be sympathetic to limiting an insurance company’s liability for damages. We have seen that in cases of PFAS contamination, insurance law is changing and, in some cases, narrowing the scope of insurance recovery opportunities under more traditional insurance provisions. The industry is seeking to find ways to limit coverage for historic PFAS contamination in ways that make insurance a less reliable tool to minimize a company’s liability for these claims, whether it is in a private action, class action, or CERCLA-based remediation.

CB: What advice can you give to companies that are either dealing with these lawsuits, or wanting to prepare for the possibility of being sued?

LLB: We urge our clients to undertake a thorough supply chain audit of all their incoming materials to identify PFAS. We suggest using the most liberal definition of PFAS, which is the European Union or California definition of PFAS, develop a plan to minimize or eliminate the reliance upon PFAS substances so you are not part of the future liability of PFAS litigation, and undertake all actions in this regard under the attorney-client privilege. Seek to find alternatives to PFAS in your products and manufacturing processes to immunize your company’s potential liability. Undertake a “contracts” audit to shift liability to others.

For example, if a company is supplying a PFAS to your company’s manufacturing operations, review the supply agreement and shift all liability derivative of the PFAS to the upstream supplier. This may not be successful as a condition of sale, but all contractual provisions should be reviewed so your company is not on the hook for liability derivative of the inclusion of PFAS supplied by others. Seek representations in writing from upstream suppliers that there is no intentionally added PFAS in the materials they supply to your company. There are lots of ways to limit liability.

Get every single supply chain opportunity investigated, so you know what is coming in and therefore can comfortably and confidently state, “Our product contains no intentionally added PFAS.” There is no such thing as “PFAS-free.” You are always going to find detectable levels of PFAS no matter what you do. You certainly do not want intentionally added PFAS in your supply chain. If you do, you had better be thinking about obtaining Currently Unavoidable Use (CUU) determinations for these use scenarios so you can qualify ongoing uses of your PFAS. Many states have regulations that impose hard stops on the inclusion of intentionally added PFAS in certain product categories, especially products marketed to consumers, and CUU determinations may be essential elements in a company’s marketing strategy.

Where we come in is helping to conduct the supply chain audit, identifying critical uses, developing CUU arguments, responding to government inquiries regarding the inclusion of PFAS in a supply chain, meeting reporting obligations like TSCA Section 8(a)(7), identifying what is coming up in state reporting obligations and advocating for a client’s interests, and addressing product stewardship sensitivities generally. At the end of the day, virtually all of our clients are trying to avoid any reliance upon PFAS. In instances where there is no suitable or effective alternative, then obtaining CUU determinations for essential uses is critical.

Originally published on the 3E blog and shared with permission. Christopher Bornmann is the State Regulatory and Legal Action Reporter for 3E.