The attorney general of Texas, US, is exploring a new legal strategy against the largest manufacturers of per- and polyfluoroalkyl substances (PFAS) – DuPont and 3M – claiming they had scientific proof of the dangers of these chemicals but continued marketing products containing them as safe for consumer use in Texas and elsewhere. This is a violation of the Texas consumer protection law that makes it illegal to commit ‘false, misleading, or deceptive acts or practices’ when conducting any trade or commerce, according to the legal filing.
The complaint alleges that the two companies, as well as DowDuPont agrochemicals spinoff Corteva and its subsidiary EIDP, advertised and sold household products containing PFAS chemicals as beneficial for more than seven decades, despite being aware of their harmful effects for more than 50 of those years. It specifically accuses them of misrepresenting and failing to disclose health risks and environmental harms associated with products sold under brands including Teflon, Stainmaster and Scotchgard.
PFAS persist in the environment, can travel long distances, and bioaccumulate within the food chain. Therefore, previous lawsuits against PFAS manufacturers have typically sought compensation for health and environmental damages. But this latest suit, filed by attorney general Ken Paxton on 11 December, represents a new strategy in such litigation.
As early as the 1960s, DuPont was aware that perfluorooctanoic acid (PFOA) was toxic to animals and humans and that it bioaccumulates and persists in the environment, according to the filing. By 1979 the company had data indicating that PFOA was building up in the blood of its exposed workers and that those exposed workers had significantly higher incidence of health issues than did unexposed workers, the complaint adds.
The state further asserts that 3M began monitoring the blood of its employees for PFAS as early as 1976, owing to concerns about their effect on human health. In 1984, the company’s internal analyses proved that fluorochemicals were likely bioaccumulating in 3M’s employees and by the late 1990s, 3M’s own toxicologist had calculated a ‘safe’ level for perfluorooctane sulfonate (PFOS) in human blood to be 1.05ppb, at a time when it was well aware that the average level of PFOS being found in the blood of the general US population was approximately 30 times higher than that threshold, the lawsuit adds. Nevertheless, the filing notes that 3M did not disclose that information to regulatory authorities or the public.
DuPont downplayed the new legal challenge. ‘While we don’t comment on litigation matters, we believe this complaint is without merit, and we look forward to vigorously defending our record of safety, health and environmental stewardship,’ the company stated.
Meanwhile, the environmental nonprofit West Virginia Rivers Coalition filed a lawsuit against DuPont spinoff Chemours earlier this month, accusing the company of violating the US Clean Water Act (CWA) by continuing to discharge PFAS, including PFOA, into the Ohio River from its Washington Works Plant near Parkersburg, West Virginia.
The organisation seeks immediate enforcement of a 2023 agreement with the EPA to address water pollution from that chemical facility, as well as civil penalties of $66,000 (£52,000) per day for each of Chemours’ numerous violations of the CWA and compensation for legal fees. The company has reported more than 100 violations of its permit limits for PFAS since at least July 2019, according to the complaint.
In response to the lawsuit, Chemours said it is committed to being a good neighbour to the communities in which it operates, and said the Coalition’s concerns are being addressed through a Consent Order that was agreed to by the EPA and Chemours in April 2023. In addition, Chemours said it is also engaged in the site’s water discharge permit renewal process that is currently underway with the West Virginia Department of Environmental Protection.
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