Litigation Concerns Mount for All in PFAS Supply Chain

While concern abounds among linen and uniform service operators about becoming subjected to onerous regulation of per- and poly-fluoroalkyl substances (PFAS) discharges in wastewater, an Oct. 11 Advanced Textiles Association webinar indicated laundries could be snagged in other legal webs as regulators learn more about how PFAS has afflicted consumers.

Meant for textile manufacturers, “PFAS Legal Liability Risks: What the Textile Sector Needs to Know” forecast the increased regulation they are likely to face under emerging federal Superfund, hazardous waste and clean water rules. Already enacted state regulations with scheduled enforcement are more immediate concerns for manufacturing and sales in California, Colorado, Maine, Minnesota and Vermont. Pending regulations have been identified in 33 states.

See TRSA’s online PFAS Planning Kit for the presentation slides and other documents to guide preparation for what’s anticipated to impose heavy compliance and other legal burdens on businesses across the economy.

PFAS lawsuits date back 40 years with the case against DuPont dramatized in the movie “Dark Waters,” resulting in the company paying out $405 million in a settlement in which it agreed to fund study and medical monitoring. This resulted in 3,500 personal injury claims resulting in $671 million in settlements by 2017.

That was the landmark case for PFAS chemistry manufacturers. Since then, manufacturers using PFAS have been challenged. A Michigan landmark case cost Asahi Kasei Plastics $3.2 million; in the textile industry, a footwear manufacturer there settled for $113 million when its weatherproofing waste containing PFAS contaminated private water wells.

The National Law Review recently noted 22 PFAS-related class action lawsuits, mostly filed against manufacturers with PFAS in their products, primarily in cosmetics; food packaging; and food/drink, hygiene and feminine hygiene products.

“Closer to home” for linen and uniform service on this list: an October 2022 filing against Recreational Equipment Inc.: an apparel retailer (textile manufacturer customer). In addition to challenging REI’s PFAS content in its waterproof clothing, the suit attacks the company’s “sustainable” and “all-natural” claims.

Plaintiffs’ claims include violation of state consumer protection laws and the federal Magnuson-Moss Warranty Act. Other accusations: breach of warranty (implied and express), fraud (actual and constructive) and negligent misrepresentation. In February, REI said it would phase out PFAS in all its products beginning in fall 2024.

Reminiscent of laundry owners who stopped drycleaning but perchloroethylene was later found on their processing sites, the webinar warned, “Manufacturers of consumer products which applied soil and stain resistant chemicals to products may see environmental and personal injury claims for decisions made decades ago.”

Webinar presenters noted cases in which Alabama and Georgia carpet manufacturers were named as defendants. They handled materials properly from a wastewater standpoint, consulting with public utilities about disposal. Despite no wrongdoing, each was accused of polluting rivers and affecting drinking water. This increased their vulnerability to be targeted for cleanup for land application of waste from wastewater treatment.

EPA stated in August that the agency intends to “hold responsible those who manufactured PFAS and/or used PFAS in the manufacturing process, federal facilities that released PFAS, and other industrial parties who significantly contributed to the release of PFAS into the environment.”

Business interests are likely to litigate much regulation that emerges, the presenters said. In consumer lawsuits, they anticipate more parties along the PFAS supply chain to be targeted. Science that plaintiffs can cite in implicating a defendant will be critical to rulings of these cases. For example, use of a textile could be implicated in a PFAS injury. But what justification has been presented that the PFAS from the textile caused the injury? What’s the proof it wasn’t from another type of product the consumer used? Science to address such questions is still nascent.

Webinar presenters were Daniella Landers and Michael Sullivan of the U.S.-U.K. law firm Womble Bond Dickinson.