Forever chemicals, lasting consequences: The PFAS liability puzzle

Per- and polyfluoroalkyl substances (PFAS) are a large family of fluorinated chemicals known for their stability and persistence in the environment.

These chemicals have been widely used in various industrial applications due to their unique properties, such as water, oil, and stain repellency, chemical resistance, and thermal stability with large-scale production occurring since the 1950s. However, their persistence in the environment and potential health risks have raised significant concerns, leading to increased regulatory scrutiny and litigation. The lag between the mass production of these persistent, mobile and bioaccumulating compounds and the relatively recent move towards meaningful regulation represents an underwriting hazard.  

Chemical properties and applications 

PFAS are characterised by strong carbon-fluorine bonds, making them highly stable and resistant to degradation in both the environment and within living organisms. This stability has made them valuable in a wide range of applications, including firefighting foams, non-stick cookware, water-repellent fabrics, and more. The PFAS family includes an estimated 12,000 substances, with over 4,700 identified in a 2021 inventory. The U.S. EPA toxicity database (DSSTox) currently lists 14,735 unique PFAS chemical compounds. Despite their widespread use, PFAS only recently came to public attention due to advancements in analytical methods that can detect low levels of these chemicals in the environment. 

Human exposure and toxicology 

Concerns regarding PFAS stem from their widespread detection in humans and wildlife, evidence of bioaccumulation, and studies reporting multiple toxicological effects. PFAS can enter the human body through contaminated water, soil, air, dust and food. Studies have shown that nearly all people in the United States have measurable amounts of PFAS in their blood (1). Human studies on PFAS health effects are generally unreliable due to the difficulty of separating PFAS exposure from other potential health impacts. However, laboratory animal toxicology studies and human epidemiological studies suggest health effects that may occur as a result of long-term exposure to PFAS at environmentally relevant concentrations. Some PFAS have been linked to cancer, other chronic diseases, immunosuppression and decreased vaccine efficacy. 

Regulation and Remediation 

The regulation of PFAS varies globally, with different approaches taken in Australia, England and Wales, the EU, Canada, and the US: 

• In Australia, national controls on PFAS use are being implemented, with stringent guidelines for drinking water expected by April 2025.  
• In England and Wales, PFAS is regulated through general environmental laws, with specific guidance from the Drinking Water Inspectorate.  
• The EU's PFAS Action Plan includes restrictions on PFAS in firefighting foams and other applications, with a broad ban on PFAS in consumer products expected by 2026.  
• In the US, the EPA has introduced enforceable Maximum Contaminant Levels for PFAS in drinking water and designated certain PFAS as hazardous substances under CERCLA and RCRA.  
• Recognising the danger of regrettable substitution in regulating PFAS on a compound-by-compound basis, Canada released its “Final State of PFAS” report in 2025. The government of Canada concluded that PFAS, other than fluoropolymers, satisfy at least one of the criteria for toxicity in s. 64 of the Canadian Environmental Protection Act, 1999 and are therefore recommended for listing in Schedule 1 (Toxic Substances). The addition to Schedule 1 allows for tighter regulation and risk management measures. The Canadian government is separately assessing the toxicity of fluoropolymers based on research suggesting lower risk profiles due to factors such as higher molecular weight (reducing bioavailability) and a lower chance of migration in air and water. 

Regulation is expected to impact the use of PFAS by commercial entities beyond mere manufacturers, including those merely applying PFAS to various consumer products. Remediation of PFAS contamination presents unique challenges due to the strength of the carbon-fluorine bond. Current methods include incineration, excavation, containment, and advanced sorption methods. Emerging technologies are being developed to address the low proposed remediation criteria for PFAS, which are orders of magnitude lower than those for other contaminants. 

Litigation trends 

PFAS litigation is occurring worldwide, with significant differences in the claims landscape across jurisdictions. The highest level of civil claims activity is seen in the US, while the EU leads in regulatory actions. In Australia, claims focus on groundwater and soil contamination, with notable settlements involving the federal government and local communities. In Europe, lawsuits arise from groundwater and soil contamination, with significant cases in Germany, Belgium, and Sweden. The US is experiencing extensive litigation through the Aqueous Film Forming Foam Multi-District Litigation (AFFF MDL), involving thousands of suits against manufacturers like DuPont and 3M. The US is also seeing contaminated water consumer claims, water supplier claims and traditional environmental claims. In 2024, 3M received approval for a $10B PFAS settlement involving drinking water contamination.   

Consumer product claims are also increasing (e.g. food packaging), alleging bodily harm and deceptive advertising. 2024 also saw a wave of Canadian litigation including class action claims brought in British Columbia (brought by government entities) and Ontario (brought by property owners) based on PFAS contamination, consistent with the arc of US jurisprudence. 

Liability pathways 

Various liability pathways are being tested in PFAS litigation, including: 

• Industrial disease claims 

• Consumer claims 

• Public liability claims 

• Water operator claims 

• Environmental claims 

• Deceptive advertising claims 

• Directors' and Officers' (D&O) claims  

Establishing causation and proving harm due to PFAS exposure is complex, with varying legal standards across jurisdictions. Industrial disease claims typically involve employees alleging injury from long-term exposure to PFAS at work. Consumer claims focus on products containing PFAS and the associated health risks. Public liability claims involve municipalities and property owners affected by PFAS contamination. Water operator claims are brought by public and private drinking water suppliers required to upgrade infrastructure due to PFAS contamination. Environmental claims are enforcement and remediation actions brought by national environmental regulators. Deceptive advertising claims allege that manufacturers continued marketing PFAS chemicals despite knowing their harmful effects. D&O claims involve directors being held liable for the use of PFAS by their companies. 

Policy coverage issues 

PFAS claims impact various types of insurance policies, including employers' liability, general liability, environmental liability, and D&O liability. Coverage challenges arise related to jurisdiction, occurrence (aggregation and long-tail concerns), known loss/anti-Montrose wording applications, defence costs, pollution exclusions, and practical limitations on insurers' rights of defence. Businesses operating internationally might face claims in multiple jurisdictions, creating issues for their insurers. Detectable PFAS in blood raises questions about what constitutes "bodily injury" for triggering coverage. Defence costs for PFAS claims are high due to the factual and scientific complexity. Pollution exclusions require case-by-case analysis to determine applicability. PFAS-specific exclusions have been proposed by the Insurance Services Office, Lloyd's Market Association and Insurance Bureau of Canada . The bankruptcy process can complicate insurers' consideration of coverage.  

Conclusion 

PFAS represent a significant emerging risk due to their persistence in the environment, potential health impacts, and the complex regulatory and litigation landscape. Effective management of PFAS risks requires a comprehensive understanding of technical, legal, and policy issues, as well as proactive measures to address contamination and liability. As regulatory standards tighten and litigation activity increases, businesses must be prepared to navigate the challenges posed by PFAS and ensure compliance with evolving regulations. 

(1) Lewis RC, Johns LE, Meeker JD. 2015. Serum Biomarkers of Exposure to Perfluoroalkyl Substances in Relation to Serum Testosterone and Measures of Thyroid Function among Adults and Adolescents from NHANES 2011–2012. Int J Environ Res Public Health. 12(6): 6098-6114. doi: 10.3390/ijerph120606098  

“Table 2 and Table 3  show the distributions of the serum PFAS and hormone concentrations in males and females, respectively, across all age categories. PFOA, PFOS, PFHxS, and PFNA were detected in 97%–100% of the serum samples. “