Per- and polyfluoroalkyl substances (PFAS), often referred to as "forever chemicals" due to their persistence in the environment and human body, have become a significant point of contention in recent years. These synthetic chemicals, which are used in products ranging from non-stick cookware to firefighting foam, have been linked to a variety of health problems including cancer, thyroid disease and developmental issues in children. With mounting evidence of the dangers associated with PFAS exposure, litigation surrounding these substances has surged across the United States and globally. This article provides a basic overview of PFAS with focus on the life science industry and the current corporate insurance industry response.
PFAS are a group of man-made chemicals that have been produced and used in various industries since the 1940s. They are found in everyday items like food packaging, water-resistant clothing and stain-resistant fabrics, as well as in industrial products like firefighting foams. PFAS compounds are known for their resistance to water, oil and heat, making them particularly useful in many manufacturing processes.
However, this same resilience also makes PFAS extremely persistent in the environment and the human body. Once released into the air, water or soil, they do not easily break down and can remain for decades, hence their nickname "forever chemicals." The persistence of PFAS has raised concerns about widespread environmental contamination and long-term human health risks.
Research has increasingly shown that PFAS exposure, even at low levels, can have serious health implications. The U.S. Environmental Protection Agency (EPA) and other health organizations have linked PFAS to several adverse health effects, including increased cholesterol levels, immune system disruption, hormonal imbalances and certain types of cancer.
Communities near PFAS manufacturing plants, military bases or other contaminated sites are particularly vulnerable to exposure through drinking water, soil or air. Given the growing scientific consensus about the health risks of PFAS, there is an increasing demand for accountability from corporations and governments that have allowed these substances to proliferate.
Of interest, while PFAS has seen significant litigation the notion exists within the legal community that the absence of a specific disease associated with PFAS has hampered the ability of the plaintiff’s bar to drive more significant litigation. As a comparative, asbestos’ direct link to mesothelioma has driven significantly greater awards and litigation over time. As the science on the effects of PFAS progresses there is still potential of greater litigation should direct links be substantiated by the scientific community.
Following is a representative list of potential exposure points to PFAS in the life science industry. These exposure points among others drive concern for insurers when underwriting a life science company specific to PFAS in today’s insurance marketplace. This listing also highlights the broad use of materials that have the potential to include PFAS, driving the concern for litigation arising from potential contamination risks and health implications.
PFAS litigation typically involves several key parties: chemical manufacturers, government agencies, impacted communities and legal advocates. Some major chemical companies have historically been some of the largest producers of PFAS. These corporations are often named as defendants in lawsuits alleging negligence in the production, use and disposal of PFAS.
Governments, including state and federal agencies, are also frequently involved in PFAS litigation. Municipalities and states often file lawsuits to recover the costs of cleaning up contaminated water supplies or to hold companies accountable for environmental damage. For example, several states have sued PFAS manufacturers for contaminating drinking water sources, leading to costly water treatment projects.
On the other side of the legal battle are plaintiffs, typically communities or individuals who have suffered health problems or property damage due to PFAS exposure. These plaintiffs argue that they were unknowingly exposed to dangerous chemicals for years and seek compensation for medical costs, property devaluation and environmental remediation.
There are several types of PFAS-related lawsuits, reflecting the broad impact of these chemicals on public health and the environment. Common types of litigation include:
Several high-profile PFAS lawsuits have gained national attention in recent years. In 2017, a large chemical company and its spin off agreed to pay $671 million to settle thousands of lawsuits filed by residents of the Ohio River Valley who claimed that their drinking water had been contaminated by PFAS from a chemical plant. More recently, in 2023, another large chemical company reached a $10.3 billion settlement with several U.S. cities and states over PFAS contamination in public water systems.
These settlements, while substantial, are only the beginning. Hundreds of PFAS-related lawsuits are still pending across the country, and as more communities become aware of the risks associated with PFAS exposure, litigation is expected to continue for years to come.
In response to growing public concern and litigation, governments have begun to take regulatory action on PFAS. The U.S. EPA has proposed stricter limits on PFAS in drinking water, and several states have enacted their own regulations to control PFAS contamination. Additionally, some manufacturers have started to phase out the use of certain PFAS compounds, though legacy contamination remains a significant issue.
The outcome of ongoing PFAS litigation could have far-reaching implications for environmental law and corporate accountability. If courts continue to side with plaintiffs, it may set a precedent for holding companies liable for long-term environmental damage and health risks. Furthermore, the financial costs associated with PFAS cleanup and legal settlements could push industries to adopt safer alternatives to PFAS, leading to broader changes in manufacturing practices.
Scrutiny on PFAS in the corporate insurance marketplace remains high. Within the general casualty and excess marketplace insurance buyers with clear PFAS exposure should expect an exclusion from underwriters if not already held within their insurance program. Most core casualty insurance carriers are looking to add PFAS exclusions at renewal where they are absent. Within the core casualty market, we have seen insurer willingness to underwrite to the PFAS exclusion. However, the insurance marketplace is increasingly succeeding in including and maintaining PFAS exclusion for most clients, especially those with clear exposure to potential litigation due to their position as a manufacturer or within the supply chain.
Further, within the life science insurance marketplace, most markets seek to exclude PFAS on all business. There are circumstances on a case-by-case basis where insurers will consider modified exclusions or removal of the exclusion. These modifications of terms in the life science marketplace generally come with a need for additional disclosure through supplemental applications and/or risk engineering calls.
Considering the current marketplace response to PFAS, WTW does not expect to see significant recovery available to insureds within the forward-looking insurance coverage for most corporate insurance buyers. However, WTW has had success assisting clients in recovery from historical insurance policies/assets dependent upon the insurance assets available against current litigation. Should you have further interest in this service capability, then please reach out to your WTW representative and/or the authors of this article listed below for assistance in connection with proper resources to assist your company in insurance recovery.
PFAS litigation represents a critical intersection of environmental justice, public health, and corporate responsibility. As scientific evidence of PFAS's dangers continues to mount, so too does the pressure on companies and governments to address the widespread contamination caused by these chemicals. The legal battles surrounding PFAS will likely continue to shape environmental policy and corporate behavior far into the future. Ultimately, the forward-looking role that corporate insurance will play in this litigation is likely to follow a similar path to that of asbestos and other environmental litigation.
Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).
