Per- and poly-fluoroalkyl substances (PFAS), increasingly referred to as “forever chemicals”, have garnered significant attention in recent years. In this alert we look at the current regulatory position and litigation landscape across the UK, Europe and the U.S. and what steps policyholders can take to assess their exposure to PFAS liability and to evaluate the insurance coverage that may respond to any PFAS-related claims.
- What are PFAS? PFAS comprise a large group of 15,000+ individual synthetic chemical substances. PFAS have unique desirable technical properties, meaning they are incredibly persistent. They are stable under intense heat, and they are oil and water resistant.
- Use of PFAS: Due to their unique technical properties, PFAS use is omnipresent. PFAS chemicals have been used since the 1950s in a vast array of consumer products, commercial applications, and manufacturing industries. Some of the major industry sectors using PFAS include aerospace and defence, automotive, aviation, chemicals, clothing, construction, cosmetic products, electronics, fire-fighting foams and fire protective clothing, food contact, packaging and processing, textiles, food processing, household products and medical devices. Due to their properties, they are used in innumerable consumer products as surface coatings, e.g. for textiles (stain protectors), in food contact materials and packaging (non-stick coatings in pans and food packaging), in cleaning agents, stain repellents, lubricants, paints, varnishes, polishes and waxes – the list is endless.
- PFAS Health and Environmental Risks: Although scientific and medical disputes are ongoing as to the dangers posed by PFAS, claimants allege that PFAS exposure is linked to innumerable health conditions, including kidney and testicular cancers, hormonal dysfunction and disease, ulcerative colitis, liver damage, decreased levels of immunity, high cholesterol, increased risk of asthma, reproduction risks and risks to foetal health - to name but a few. As a result of the developing science, countries all over the world are focusing on regulation of PFAS risks.
- PFAS Contamination: In October 2024, the U.S. Environmental Protection Agency (EPA) reported that because of their widespread use and persistence in the environment, many PFAS are found in blood of people and animals all over the world and are present in a variety of products and in the environment. PFAS have also been frequently observed to contaminate groundwater, surface water and soil, which means humans can be exposed through drinking water and food supplies. Critical questions which remain include: (i) how to better detect and measure PFAS; (ii) the extent to which humans are exposed to PFAS; (iii) how harmful PFAS are to humans and to the environment; (iv) how to remove PFAS from drinking water; and (v) how to manage and dispose of PFAS. If all PFAS releases ceased now, they would continue to be present in humans and in the environment for generations.
- PFAS Degradation and Bioaccumulation: PFAS all contain carbon-fluorine bonds, which are one of the strongest chemical bonds in organic chemistry. This means that they resist degradation: they do not easily break down in the environment and they bioaccumulate in the wider ecosystem, in humans, animals and plants – hence the term “forever chemicals”. Science concerning the effect of PFAS in human health and the environmental effects has progressed significantly over the last few decades. PFAS destruction remains the subject of continuing scientific study, with reports that some PFAS may be destroyed in thermal treatment systems operating at more than 950 degrees centigrade.
- Regulatory Position:
EU Proposal for a “Universal Restriction”:
I. The European Chemicals Agency (ECHA) is currently assessing a proposal for a “universal restriction” of PFAS (PFAS Proposal) presented by Denmark, Germany, the Netherlands, Norway and Sweden in accordance with Article 69(4) of the REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) Regulation.
II. The PFAS Proposal would prohibit the manufacture, use and sale of a large group of PFAS that is expected to include several thousand substances, with limited phase-ins and exceptions for very specific applications (like use in military technology). It targets PFAS because of their persistence in the environment. According to the PFAS Proposal, PFAS are, or ultimately transform into, persistent substances, leading to irreversible environmental exposure and bioaccumulation.
III. In a recent note, the ECHA and the Member States that presented the PFAS Proposal announced that they will continue with their work on the PFAS Proposal and their opinions in 2025. At this stage, industry does not expect that the ECHA will be able to take a position on whether to recommend that the EU adopts the restriction until the end of 2025, although the Commission is expected to clarify its intentions on PFAS in the coming months.
IV. If adopted, the universal PFAS restriction will build on, and in some cases replace, the EU’s existing regulation of PFAS. Already, the EU restricts certain PFAS under the REACH Regulation, the Persistent Organic Pollutants (POPs) Regulation, the Drinking Water Directive, consumer product safety legislation and food contact materials legislation.
UK Position:
I. BREXIT: The UK regulatory system is highly fragmented, with the system being split between England, Scotland and Wales (Great Britain) and Northern Ireland (NI). Distinct to Great Britain, NI remains subject to many EU regimes, including EU REACH, which amongst other things addresses the regulation of PFAS. Post-Brexit, under the European Union (Withdrawal) Act 2018, the EU REACH regulation was brought into UK law on 1 January 2021, and is known as UK REACH. Corporations may be required to comply with both sets of UK and EU regulations, as necessary.
II. UK REACH: This regulation regulates chemicals placed on the market in Great Britain. It covers all sectors – manufacturing, importing, distributing, or using chemicals as raw materials or as finished products (not only for the chemical industry). It applies regardless of company size. It makes businesses responsible for the safe use of substances placed on the market or which are used in products. It requires every actor in the supply chain to communicate information on the safe use of chemicals. UK REACH contains specific exemptions as well as tailored provisions for certain substances. For PFAS, UK REACH currently has limited PFAS restrictions in place (a list is available from and maintained by the Health and Safety Executive) (HSE). The HSE is in the process of considering responses to a June 2024 call for evidence on fire-fighting foams containing PFAS. The scope of the call for evidence was wide-ranging, including the manufacturing processes, importation of foam products, and uses of fire-fighting foams. It also covered issues such as alternatives to PFAS, hazardous properties, environmental effects, and disposal.
III. The General Product Safety Regulation 2005 (GPSR 2005): The Great Britain (GB) GPSR 2005 applies to products where there is no specified product safety regime in place, and applies to products being supplied in, or into Great Britain. The GB GPSR 2005 applies to products used by consumers. It sets out obligations of producers and distributors. Given the increasing knowledge relating to the harmful effects of PFAS, products containing certain forms of PFAS are likely to fall within the scope of the GB GPSR 2005 and will likely face hurdles in establishing product safety. It is a strict liability criminal offence to place an unsafe product on the market under the GB GPSR 2005, so negligence and lack of intention are not relevant factors. The GB GPSR 2005 is distinct from the EU’s 2024 General Product Safety Regulation (GPSR). In NI, the GB GPSR 2005 was superseded on 13 December 2024 by EU GPSR 2024.
IV. Health and Safety at Work etc Act 1974 (HSWA) (and associated health and safety legislation): Under the HSWA and associated legislation (e.g. the Control of Substances Hazardous to Health Regulations 2002 (COSHH)), “dutyholders” (which may include employers) must take responsibility for assessing and controlling the hazards created by their work, including exposure to hazardous substances. For substances that are classified as carcinogens or mutagens, employers must reduce exposure to a level as low as reasonably practicable (COSHH, reg. 7(7)). Since certain PFAS are classed as carcinogenic in the GB Mandatory Classification and Labelling (MCL) list, exposure to those PFAS must be kept as low as reasonably possible.
V. The Stockholm Convention: Since 2009, one of the PFAS chemicals, perfluorooctanesulfonic acid (PFOS) and its derivatives, have been included in the Stockholm Convention to eliminate PFOS use. The UK is a signatory to the Stockholm Convention. PFOS has been restricted in the EU for more than 10 years under the POPs Regulation. The Stockholm Convention also regulates the global elimination of perfluorooctanoic acid (PFOA), its salts and PFOA-related compounds. PFOA has been banned under the POPs Regulation since 2020. The national authorities of Germany, Denmark, the Netherlands, Norway and Sweden have proposed restrictions covering a wide range of PFAS uses, which as noted are subject to evaluation by the ECHA. The European Commission will decide on restrictions in due course. Some PFAS substances are also on the list of Substances of Very High Concern (SVHC), including PFOA and PFHxS. As at 2023, three groups of PFAS were identified as SVHC on the basis that they pose a threat to human health and wildlife when exposed through the environment (including through drinking water).
VI. Other environmental and product safety regulation: PFAS are potentially subject to regulation pursuant to several further areas of UK environmental and product safety regulation, including: drinking water regulation; environmental permitting regulation for industrial activities; and food contact materials regulation.
- The Litigation Landscape:
U.S.: the growing body of scientific research on PFAS issues has unsurprisingly resulted in numerous mass tort claims being filed by the U.S. plaintiff bar. As is often the case, we expect similar claims to follow and to be filed in the UK. Examples of claims recently filed include:
I. Kombucha manufacturer Health-Ade was sued in New York federal court by a consumer alleging that its drinks contain PFAS. See Morton v. Health-Ade, LLC, Cas. No. 7:24-cv-00173 (S.D.N.Y.).
II. BIC was sued for failing to warn consumers that it allegedly uses PFAS in its disposable shaving razors. See Butler v. BIC USA INC., No. 24-cv-2955 (N.D. Cal.).
III. Natural toothpaste company RiseWell LLC was sued by a putative class of consumers, alleging that its toothpaste—advertised as “natural” and “safe to swallow”—contained PFAS. See Watkins et al. v. Illuminati Labs LLC et al., Case No. 5:24-cv-03529 (N.D. Cal.).
Europe:
I. The Netherlands: Claims relating to historic PFOA and GenX discharges. In civil proceedings brought on behalf of four municipalities, a court ruled that the defendant company was liable for discharges in certain historic periods, despite the company holding requisite permissions for discharge during relevant periods. Separately, in April 2024, eleven campaign groups commenced proceedings against the Dutch government, alleging that it has failed to prevent PFAS pollution.
II. Sweden: In December 2023, after a decade of legal action, Sweden’s Supreme Court held in a ground-breaking judgment that high PFAS blood levels constitute personal injury, even if a claimant is not manifesting sickness. The claim was brought against Miljö & Teknik, a water treatment company owned by Ronneby municipality, alleging high levels of PFAS in water and soil from fire-fighting foam at an airfield. Another case – brought by the municipality of Uppsala and its local water supplier against the Swedish military – is ongoing.
III. Italy: There have been a series of claims related to the now-closed Miteni factory in northeastern Italy, alleging PFOA exposure through contaminated tap water resulting from pollution of the river Arno and surrounding water systems. In May 2024, the Veneto Regional Administrative Court held Miteni’s current and former owners, including Japan’s Mitsubishi, liable for the clean-up costs, estimated to be €137 million. Criminal proceedings against fifteen senior executives are ongoing.
The UK:
I. In terms of the outlook for the UK, whilst no PFAS-related claims have been filed to date, the potential for class action litigation looks likely. The Guardian reported on 15 January 2025 that the UK Environment Agency has identified more than 10,000 high-risk sites contaminated with PFAS. It reported a number of the alleged main pollution hotspots as: (1) the Angus Fire-Fighting Foam Plant and Training Centre, North Yorkshire; (2) AGC Chemicals manufacturing plant site, Lancashire; (3) Former RAF Base, Duxford, Cambridgeshire; (4) Fire Service College, Cotswolds; (5) RAF Bases, nationwide; (6) Heathrow Airport, Middlesex; (7) Sewage Treatment plants, nationwide; and (8) Stowey Quarry Landfill, Somerset. A claimant law firm is already seeking potential claimants to register their interest in relation to investigations into some of these entities. We fully expect that claimant law firms will seek to bring claims against potentially exposed organisations for damages relating to personal/bodily injuries.
- Insurance Coverage:
I. Assess PFAS Exposure: Coverage exists for PFAS exposure, and insurers have already paid hundreds of millions to companies with PFAS liability. We strongly recommend that organisations in the most likely PFAS-exposed sectors (aerospace and defence, automotive, aviation, chemicals, clothing, construction, cosmetic products, electronics, fire-fighting foams and fire protective clothing, food contact, packaging and processing, textiles, food processing, household products and medical devices) proactively take steps now to assess their potential exposure to PFAS liability and to evaluate any insurance coverage that may respond to any PFAS-related claims. PFAS claimants may allege exposure to PFAS over many decades, potentially from commercial activities or businesses that the policyholder exited long ago. Insurance policies in place during this entire period may cover liability for PFAS claims. To assess an organisation’s overall PFAS exposure, policyholders should identify current and past commercial activities, by its suppliers or subsidiaries, and by any of its other entities for which it might be responsible.
II. Preparing for Potential Insurance Claims: Coverage for PFAS-related liability may be provided by policies that are no longer easily accessible, either because they were issued to now defunct entities or by the sheer passage of time. Identifying historical policies, as well as insurance policies to which the policyholder may have been designated as an “additional insured” (such as those purchased by vendors or other contractual counterparties), could provide access to significant insurance coverage. Reviewing potentially applicable policies before a claim arises also may help to ensure compliance with any potential notice and cooperation conditions, which may be necessary to preserve recovery.
III. Assessing Available Coverage and Pollution Exclusions:
i. Occurrence, Occurrence-reported, or Claims-made Policies: Policyholders should, as noted, conduct a review of potentially applicable policies, both historic and current. This is because policies will most likely be written on an occurrence, occurrence-reported, or claims-made basis, which means they each operate differently. The most responsive policies are likely to be those that provide coverage for personal/bodily injuries relating to product liability, environmental risk, and general liability. Employer liability and property damage policies should also be considered.
- Occurrence policies: coverage under these policies is determined by reference to the underlying exposure or injury occurring during the policy period. This is why policies underwritten decades ago may still be implicated now.
- Occurrence-reported policies: in general terms, coverage under these policies (often referred to as Bermuda Form policies) is determined by reference to (i) the underlying exposure commencing on or after the policy inception date (or retroactive date if applicable), and (ii) the injury alleged must also have taken place on or subsequent to the policy inception date (or retroactive date if applicable).
- Claims-made: coverage under these policies is determined by reference to the date on which the claim or circumstances which may give rise to a claim, are notified to the insurer. The date must be a date during the policy period. These policies should be checked carefully for relevant exclusions.
- It is important to note that endorsements to policies can amend the terms of cover, so every policy wording needs to be reviewed to assess whether the policies potentially respond.
ii. Pollution Exclusions: Many insurers have denied coverage for policyholders’ PFAS liability on the ground that PFAS is a “pollutant” subject to their policies’ pollution exclusions. Nevertheless, the inclusion in a policy wording of a pollution (or other) exclusion does not necessarily preclude a policyholder’s ability to recover against its insurers. Policyholders may still have strong arguments for coverage for PFAS-related liability. Indeed, insurers with pollution exclusions have already paid large sums to resolve PFAS coverage claims. Coverage will be fact and policy dependent; relevant factors will include the nature of PFAS use, manner and period of exposure, and the way in which the chemicals are alleged to have caused personal/bodily injuries. For example, such exclusions may not apply where the policyholder’s PFAS liability arises from the intended use of its product, rather than waste emissions from industrial facilities.
iii. PFAS-specific Exclusions: Whilst insurers are increasingly seeking to restrict coverage for PFAS-related exposure going forward, current policies should still be reviewed. It may be more difficult for insurers to avoid liability for legacy exposure because historic policies may not contain specific applicable exclusions. Given that PFAS have been widely used in so many sectors since the 1950s, the resultant claims are likely to be based on continuing exposure occurring over many years and spanning multiple policies and insurers. This means that PFAS claims are likely to trigger or give rise to claims for coverage under numerous policies against multiple insurers, including under legacy policies issued decades ago.
Whether your company is currently responding to PFAS claims or is considering how to assess and prepare for potential claims in the future, Covington’s insurance recovery team can help. Covington is a global leading policyholder firm assisting clients with PFAS-related coverage and represents companies facing all manner of potential PFAS liabilities.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Insurance Recovery and Environment practices.
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