At the end of 2021, the Agency for Toxic Substances and Disease Registry (ATSDR) published a report regarding its findings and recommendations for residents in certain areas of Southern New Hampshire with respect to PFAS located found in private wells in the area. Significantly, the ATSDR made comments several times regarding PFAS in products that could act as a source of further PFAS exposure to citizens in the area. The comments are one of the first public comments made by a federal agency that specifies types of consumer goods that may contribute to elevated PFAS levels in humans. We have predicted for some time that PFAS products liability lawsuits will occur in the next few years in ever-increasing numbers. The ATSDR’s latest report, and the statements therein, provide some foundation for these future lawsuits. Consumer goods companies with PFAS concerns must take the time now to assess the scope of the issue and properly adjust business practices as necessary to mitigate risk.

ATSDR PFAS Report

The ATSDR report’s primary purpose is to examine the scope of potential health effects to residents in Southern New Hampshire due to PFAS-contaminated well water. Much of the report is spent detailing the history of contamination of the wells and the scope of the issue that exists today.  However, the ATSDR also concludes the following, which is significant:

“Residents should reduce exposure from background sources of PFAS by avoiding or limiting the use of products containing PFAS. Examples of products that may contain PFAS include food packing materials, stain resistant carpets, water resistant clothing,
cleaning products, and some cosmetics.

ATSDR recommends nursing mothers continue to breastfeed and contact their healthcare providers with specific concerns. ATSDR is available to consult with healthcare providers as needed. To help protect formula-fed infants from potential exposure, caregivers should use pre-mixed formula or reconstitute dry formula with water sources not containing PFAS.”

Interestingly, the ATSDR report summarizes that the EPA currently reports that there is “suggestive evidence” that PFOA and other PFAS cause harm to human health and IARC has classified PFOA as “possibly carcinogenic”; however, ATSDR states “currently, ATSDR cannot estimate a quantitative cancer risk for PFOA, PFOS, or other PFAS. At this time, carcinogenic potential for most PFAS has not been fully assessed, and the science is too limited to quantify risk.”

PFAS In Products Warning Implications

The ATSDR report does not provide significant background information on the conclusion that mere exposure to PFAS-containing products could increase PFAS levels in the blood of citizens, nor does the report provide an explanation as to why the specific products (food packaging, carpets, clothing, cleaning products, and cosmetics) were targeted over others. However, it is likely that these products were mentioned due to significant media and legislative attention at the state levels given to these products, as well as scientific studies that have recently been published regarding PFAS content in these product types. Further, generally speaking, the products mentioned by the ATSDR have historically contained “intentionally added” PFAS. which many states have explicitly banned in certain product types over the last two years.

The ATSDR report is one of the first examples of public comments made by a federal agency that specifies types of consumer goods that may contribute to elevated PFAS levels in humans. We have predicted for some time that PFAS products liability lawsuits will occur in the next few years in ever-increasing numbers. The ATSDR’s latest report, and the statements therein, provide some foundation for these future lawsuits. A common theme at modern day products liability lawsuits is for plaintiffs’ counsel to present evidence of statements made by federal regulatory or scientific agencies. While not definitive evidence of a causal connection between PFAS and harms to human health, the ATSDR report nevertheless will be one piece of evidence at future PFAS products liability trials to show the “state of the art” (i.e. – the level of knowledge publicly available) as of current day. This impacts the story attorneys will tell as to whether a company’s actions were or were not reasonable based on either what they knew or should have known given the information available.

Consumer goods companies with PFAS concerns must take the time now to assess the scope of the issue and properly adjust business practices as necessary to future mitigate risk. A full compliance check with an eye towards future regulations and litigation risks is essential.