PFAS, or perfluoroalkyl and polyfluoroalkyl substances, have become a significant environmental and human health concern in the United States. Due to their resistance and low chemical reactivity, they are used in a wide range of product types. In recent years, the United States has seen an increase in PFAS-related litigation and has imposed restrictions on the use of certain PFAS in products in states like Minnesota. In addition, the US Environmental Protection Agency has set enforceable drinking water limits for some of the most hazardous PFAS compounds.
Similarly, in the UK, questions have been raised about the environmental impact and potential human health risks of PFAS, leading to greater activity by consumer groups and regulators. A recent report by the UK’s Health and Safety Executive has recommended limiting the use of PFAS in foams, textiles, furniture, and cleaning products, and the HSE has added PFAS to the Rolling Action Plan for evaluation under UK REACH regulations. Additionally, PFAS is regulated under the UK’s Persistent Organic Pollutants regulations. The EU has existing legislation restricting PFOS, PFOA, and PFHxS and is currently considering the EU PFAS Restriction Proposal for a blanket ban on all PFAS chemicals.
The volume of PFAS-related litigation is expected to increase in the UK and Europe. A growing number of claims may be brought on grounds of personal injury, product liability, property damage, and statutory nuisance, including historical claims for alleged workplace exposures. Companies facing these claims may look to their insurance policies, including public liability or commercial liability, employers’ liability, product liability, and environmental liability insurance, for coverage of related costs.
Insurers and insureds may need experienced coverage lawyers to identify responsive policies and address potential coverage issues. Early notice of any claims or potential claims and timely preservation of relevant documents is crucial. Companies should seek experienced lawyers with undivided loyalty when insurers defend third party claims and should negotiate policy terms proactively, particularly for policies containing PFAS or other alleged contaminant exclusions. Proactive approaches to liability insurance will be essential for businesses as emerging alleged contaminants and regulations related to PFAS are rapidly evolving.
