PFAS or ‘forever chemicals’
More than 10,000 per- and polyfluoroalkyl substances (PFAS) are used globally in industrial and consumer products. These artificially produced chemicals are resistant to water, stains and heat and present in hundreds of different products including water-repellent clothing, non-stick cookware, plastics, food packaging, and medical and electronic devices.
PFAS are often referred to as ‘forever chemicals’ because they are persistent – they do not fully degrade, even over long periods of time, and accumulate in the environment, animals, and the human body. This causes increasing concern and PFAS have come under scrutiny for their potential involvement in diseases such as cancer, liver damage and possible negative effects on the immune system and fertility.
The use of PFAS in the EU is regulated to some extent, but PFAS are not banned, yet. A comprehensive proposal to generally restrict the use of PFAS is on the EU’s table but has been delayed due to their relevance for key industries, including the energy transition.
Why is it worthwhile to think about civil litigation risks?
‘PFAS litigation’ is a broad term that includes actions by private parties seeking damages from companies because of alleged water and soil contamination or for personal injuries allegedly caused by PFAS. There are also consumer protection and false advertising claims, where claimants allege that they were misled because products were marketed as safe or sustainable when they contained PFAS. While companies in the US have been facing PFAS-related lawsuits across the country for several years now, the legal debate in the EU so far focuses on regulating PFAS. However, companies manufacturing PFAS or using them in their value chain should keep potential civil litigation risks in mind as PFAS is increasingly the subject of civil litigation across Europe.
Environmental contamination claims
To date, civil lawsuits regarding PFAS mainly concern damages for specific environmental contamination, e.g., drinking water. There have been civil proceedings in different EU Member States, in which courts acknowledged PFAS as environmental contaminants and, in the specific circumstances, held polluters liable for remediation efforts and damages caused. This trend is expected to increase as awareness of PFAS as a potential contaminant has grown over the last years and EU Member States are introducing specific remediation thresholds. For example, companies have been held liable in several European jurisdictions for removal of PFAS from contaminated (drinking) water supplies or the soil. In some of these cases, the threat of litigation has led to large settlements.
Product liability or tort claims based on personal injury
So far, there is no general trend of personal injury claims due to exposure to PFAS in the EU. In the few already existing proceedings, claimants allege that they suffered from health problems due to PFAS exposure and base their claims on product liability and tort laws.
For example, the Supreme Court in Sweden issued a decision in 2023 regarding PFAS contaminated drinking water supplied by a municipal utility company. The court ruled that drinking water containing PFAS levels far exceeding the approved threshold value, was a defective product within the meaning of the Swedish product liability act, which implements the European Product Liability Directive. The court also held that elevated PFAS levels in the claimants’ blood constituted a personal injury under Swedish tort law. The Swedish Supreme Court did not, however, rule on the amount of the compensation as the claim was a declaratory action.
Personal injury claims are quite rare and very complex, involving extensive scientific evidence. They generally require the claimants to establish causation between PFAS exposure and specific health outcomes. Proving this causal link poses high hurdles for claimants as health impacts of PFAS and safety levels of exposure to humans are not clear and PFAS are so ubiquitous that it would be challenging for claimants to pinpoint where the allegedly damaging PFAS concentration originated from.
Overall trend: Europe is becoming increasingly litigious
Europe is becoming increasingly litigious, which is triggered by a variety of factors: There is a growing active claimant bar across jurisdictions, which uses social media to attract potential claimants, and takes advantage of collective redress mechanisms such as those under the Representative Actions Directive. This trend is also being fuelled by an increase in the availability of third-party funding.
In the context of potential PFAS-related litigation in the EU, two types of claimants could pursue claims: (i) individual claimants or groups of claimants who are primarily interested in monetary compensation and seek to obtain high damages payments, and (ii) NGOs that strategically use civil litigation as a means of compensating for perceived lax regulatory enforcement.
What you should be thinking about now
Manufacturers of PFAS, companies relying on PFAS in providing their products and services, and insurers should be aware of the increasing potential for civil litigation due to (alleged) damages suffered from exposure to PFAS. Companies may therefore want to assess their risk profile that could expose them to such claims. This includes taking into account the EU’s Product Liability Directive, which significantly broadens the scope of application for product liability claims and lowers the legal requirements to establish a claim, potentially encouraging more litigation in the future. Companies should also closely follow regulatory developments in the EU as regulatory thresholds and an envisaged PFAS ban may set the scene for increased civil law action.
