Issue Update: PFAS and Talc
This week we close out our key issue updates with the latest on per-and polyfluoroalkyl substances (PFAS) and talc.
A wide variety of legislative, regulatory, and judicial developments are in play on PFAS. Representative Debbie Dingell (D-MI) announce plans at a forum hosted by the Environmental Working Group to introduce legislation that would require the Environmental Protection Agency (EPA) to set cleanup standards and enforceable drinking water limits for some PFAS compounds. She also said the bill would send a signal to the Biden Administration that controlling PFAS is “a top priority in the new Congress.” The bill would also ban chemicals from materials that touch cookware and cosmetics. A similar bill was passed by the House in the previous Congress but never moved in the Senate. Vice President Biden has indicated that restrictions or outright bans on PFAS compounds are a priority for his administration.
At the same time, industry groups are likely to increase scrutiny of state efforts to develop limits for PFAS in drinking water that go well beyond the existing EPA health advisory of 70 parts per trillion. Conflicting state standards create a patchwork quilt of regulation that confuses and confounds companies and consumers—and creates a situation ripe for litigation. Adam Baas, and attorney for DLA Piper, told a group at a recent American Bar Association environmental meeting that “regulations on PFAS are ahead of science.”
The mass tort industry is taking advantage of the confusion through an explosion of litigation in the past year, most focused on expanding existing multi-district litigation (MDL) involving exposure to PFAS in firefighting foam and drinking water. Until the science on PFAS exists, the mass tort machine will continue to aggressively pursue litigation that relies on fragmented and conflicting scientific “facts” in order to force companies to pay billions in settlements or risk having their reputation, integrity, and shareholder value shredded in the public square.
The Biden administration should make an investment in independent, objective, and time-tested scientific analysis to determine the truth about the effects of PFAS on humans—something the Center’s research can shed light on. Advancing public policy initiatives on scientific issues without such complete evidence—no matter how well intentioned—is irresponsible, short-sighted, and decidedly non-scientific.
Litigation dominates developments on talc. Earlier this month, a Missouri court refused to consider Johnson & Johnson’s appeal of $1.2 billion in damages awarded to women who blamed their ovarian cancer on asbestos in its talc products. J&J now plans to appeal to the U.S. Supreme Court. The company faces more than 21,000 other similar lawsuits, so the outcome of the Missouri case will likely determine whether J&J will be forced into a “science vs. settle” decision, similar to the one Bayer reached. J&J insists that its products are safe and that it will continue the legal battles.