Recent polling conducted by the Center confirmed that consumers prefer that lawsuits in which scientific evidence is on trial rely on “settled science”—fact-based and time-tested evidence that has been the subject of multiple studies both by independent researchers and government agencies that all produce the same results—to resolve such disputes.
And, as the battle over per-and polyfluoroalkyl substances (PFAS) escalates, focusing on settled science could not be more important.
What are PFAS?
PFAS compounds, often called “forever chemicals” because they break down slowly, have been used for decades in non-stick cookware, stain-resistant carpeting, water-proof clothing, food packaging, and dozens of other products. They can survive extreme variations in temperature and air and water pressure, making them an invaluable component in countless lifesaving applications like sealing aircraft and fighting fires.
The expansive use of PFAS and their durability mean that trace amounts of the compounds are found around the world, including in drinking water and the bloodstreams of most Americans. For more information on PFAS, check out our issue primer.
The EPA takes a look
Two of the original PFAS compounds—PFOA and PFOS—were voluntarily phased out decades ago by the manufacturers because of concerns over the potential harm that over exposure could have to humans and have been replaced by many other “Gen-X” PFAS compounds that are safer and break down faster than the original versions.
Several of these compounds are currently being studied by the Environmental Protection Agency (EPA), which established voluntary PFAS “Maximum Contaminant Level” (MCL) guidelines of 70 parts per trillion (ppt) in the 1990s. For context, 1 ppt is the equivalent of one grain of sand in an Olympic-sized swimming pool.
Levels of PFAS compounds that exceed this voluntary limit have been found in less than one percent of public water supplies. In many cases, these water supplies are located near PFAS manufacturing sites or military bases, where PFAS compounds are frequently used in firefighting foam. Where such concentrations are discovered, local authorities typically work with the manufacturer to clean up the site and prevent further contamination.
States jump in the mix—and create confusion
Meanwhile, several states—California, Colorado, Maine, Massachusetts, Michigan, and New Hampshire—have enacted or are attempting to enact stricter guidelines on the amount of PFAS in public drinking water supplies that are well below the EPA’s voluntary standards. These individual state guidelines create a complex patchwork quilt of regulatory requirements resulting in compliance nightmare for any business that operates on a regional or national level. Beverage makers that purchase water from municipalities and sell their products—purified bottled water and soda, for instance—in many states are particularly affected by inconsistent state standards.
National Standards are Proposed
Some beverage companies have called on federal regulators to set a national standard for PFAS levels between 5 and 10 ppt—far below the EPA’s existing 70 ppt voluntary standard. And, while one might assume that environmental interest groups would support such a proposal, according to Consumer Reports, “some scientists and environmental organizations have concluded that a far lower concentration of PFAS in water—1 ppt—is a more appropriate limit.”
What scientific evidence are these scientists and organizations using to justify the 1 ppt standard? It is unclear, and experts are also unsure if the technology even exists to effectively measure PFAS—or any other compound or chemical—at this level.
If a federal standard of 1 ppt were established, it seems inevitable that this would create the potential for frequent violations which, of course, makes a tempting target for mass tort lawyers. Imagine the influx of late-night TV ads to recruit potential plaintiffs: “Drink water? Got cancer? You could be entitled to significant compensation. Call the number on your screen now!”
Already, at least one potential mass lawsuit is brewing that seeks to have municipalities collect damages beyond cleanup costs from manufacturers, and that is before any change in acceptable levels of exposure.
It’s Time for Settled Science
It appears that all stakeholders in the debate—PFAS manufacturers, beverage companies, public policymakers, environmental groups, and rank-and-file consumers—would like to have a federal agency establish reasonable guidelines for PFAS levels that are based on settled science, not “agenda driven” studies geared to produce pre-ordained results.
The Center agrees. My recent commentary in Real Clear Science builds upon this, setting the stage for what consumers believe is the “gold standard” in determining settled science when litigation is in the cards. An independent and objective panel of scientists should evaluate the most important studies on PFAS compounds to determine which findings are accurate, which are questionable (or agenda driven), and what additional research needs to be conducted to facilitate regulations that protect the public health and mitigate the need for mass torts.