PFAS: risks and trends

In the past year, PFAS got a lot of attention in the Netherlands. Developments arose not only in the media, but also in the legal sphere, including several announcements of imminent claims or class actions. We expect that this will not stop here and that we will see a growing number of lawsuits in the years to come. Especially in the United States, many lawsuits have been running for years already, with some ending in million- or even billion-dollar settlements. It is not without reason that PFAS is also called ‘the new asbestos’. It is high time to take a closer look at this topic.

PFAS stands for per- and polyfluoroalkyl substances and is a collective name for a group of chemical substances. These substances have in common that they all contain carbon and fluorine. This carbon-fluorine bond is known as one of the strongest compounds in organic chemistry. The disadvantage of this strong compound is that PFAS are toxic to humans and the environment and that they hardly degrade. For this reason they are also called the ‘forever chemicals’.

While these substances originally appeared on the market in the shape of non-stick pans and fire-fighting foam, nowadays it is hard to find any products in which PFAS are not
incorporated. Telephones, mattresses, baking paper, pizza boxes, make-up, pacemakers, pesticides, fire extinguishers, furniture, meat and fish, clothes, and even in tap water; there is no escaping PFAS. Producers have known since the 1960s that PFAS can be dangerous, but have kept the outside world in the dark about the risks for decades.

The major part of our PFAS ingestion takes place through food. Factories emit the most PFAS by far, both through the air and through waste water, which makes these substances end up in our food and drinking water. In 2021, the Netherlands was even declared Europe’s leader for having the highest contamination level from PFAS pesticides in locally grown vegetables and fruits.

PFAS is associated with health risks, from a negative impact on the immune system, procreation and the development of the unborn child, cholesterol levels in blood and liver, up to causing kidney or testicular cancer. PFOA and PFOS in particular are known for their harmful effects. The effects of other kinds of PFAS, like the more recent ‘GenX substances’, have not been fully clarified yet, although these are also a source of concern.

In and around the Netherlands, a big role is played by three PFAS producers: Chemours in Dordrecht, 3M in Zwijndrecht and Lanxess in Leverkusen. The PFAS they emit enters the Netherlands via the rivers Scheldt and Rhine. The Dutch National Institute for Public Health and the Environment (‘RIVM’) therefore advises against eating fish from the Westerschelde estuary, as it contains extremely high levels of PFAS. Likewise, local residents living near Chemours have been advised against eating vegetables grown in their own gardens.

Several legal proceedings are currently pending against Chemours, which were started by citizens, water companies and surrounding municipalities. Last year, the TV program Zembla revealed that the former parent company of Chemours, DuPont, had withheld a lot of information deliberately. In its 2022 annual report, the firm wrote that the possibility of a loss due to a liability claim was ‘far away’. However, on 27 September 2023 the Court of Rotterdam found Chemours liable for the damage from PFOA pollution suffered by four municipalities in the surrounding area (read the judgment in Dutch here).

The spotlight is also on the Belgian plant 3M. In May 2023, the State of the Netherlands announced a civil claim for liability regarding the pollution of the Westerschelde, after the Belgian government previously reached a 571 million Euro settlement with 3M. In November 2023, three interest groups of professional fishermen also stated that they would claim the revenues they lose because of the ban on fishing in the Westerschelde.

Last but not least, a class action against the State of the Netherlands was announced last month based on the (too) high PFAS levels in the soil, demanding the State's more vigorous intervention against emission and proliferation of PFAS, and in terms of supervision and enforcement.

Besides the ongoing and announced proceedings on PFAS emissions, new regulations are also on the way. In January 2023, the Netherlands, together with Germany, Denmark, Norway and Sweden, presented a proposal for a European ban on the production, use, sale and import of some 10,000 PFAS. This proposal gives companies eighteen months time to remove all PFAS from the market and to develop alternatives to these chemicals. Producers can nominate cases that call for an exception, such as products of essential use for which there is no alternative; a pacemaker, for example. For such products, the transition period will then be significantly extended to 12 years.

Several interest groups from the chip industry, the chemical and the hydrogen industry are concerned about this proposal. They call the proposed regulations rash and without sufficient focus on individual substances. They also argue that for electric cars and chips, few alternative substances are available yet that work equally well. These interest groups argue that the energy transition could be jeopardised if this ban would be introduced too soon. They also refer to the importance of PFAS for the production of solar panels. PFAS is said to be used to protect solar panels from UV radiation, wind, dust and moisture.

The European Commission is expected to present a final proposal in 2025 to be decided on by the Member States. Last month, the US already adopted stricter regulations, which strongly lower permitted PFAS levels in drinking water and designate PFOA and PFOS as 'hazardous substances', meaning that any release of these substances must be reported to the US Environmental Protection Agency within 24 hours.

It is clearly important to start searching for safe and sustainable alternatives. Instead of awaiting a possible ban, many manufacturers have been on the lookout for years for safe and sustainable alternatives. Examples of products where this has succeeded are fire-fighting foams, non-stick pans and carpets. Clothing brands such as Fjällräven and Patagonia are also working hard to make their water-repellent collections PFAS-free. In addition, several universities are researching sustainable methods of cleaning up existing PFAS pollution. There is a crying need for such methods, especially as manufacturers are now increasingly ordered to clean up PFAS.

It is clear that PFAS is currently at the centre of attention. Several lawsuits against the Dutch State and major producers like Chemours and 3M are already pending or have been announced. As PFAS is present in countless products and virtually everyone comes into contact with it, we expect that this is only the beginning. We see that in other countries, employees who have come into contact with PFAS through fire extinguishers or residents living near airports where PFAS-containing materials are widely used, are also starting proceedings. This means that employers also run the risk of being sued. This obviously increases the impact on companies and insurers considerably, while in many cases the damage has already been done. Damages are potentially substantial as they need not be limited to personal injury, but may also include damage to property, such as diminished land value. In short, this is a topic that many companies and insurers may be confronted with in the coming years.

Written by Noor Wasmus, Henriette Verdam and Michael Bacon.