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What GCs Can Do As Regulators Eye ' Forever Chemicals '
By Michele Gorman
Law360 ( January 10 , 2023 , 4:46 PM EST ) -- Increasing federal and state oversight of certain widespread chemicals is outside the typical realm of issues for most general counsel , but the complex and quickly evolving space should push top corporate lawyers to gather data to fully understand their supply chains and any associated business risks , experts say .
Per- and polyfluoroalkyl substances , or PFAS , also known as " forever chemicals " due to their longevity in the human body and the environment , are used in a wide range of consumer and cleaning products , often to give materials water- , grease- and stain-resistant or nonstick properties .
The chemicals , which experts refer to as ubiquitous , are well known not just for their durability and persistence in the environment but increasingly for their potential risks to human health , including an increased risk of some cancers , reduced immune response and developmental delays , according to data from the U . S . Environmental Protection Agency .
Some companies have faced years of litigation from environmental advocates and state attorneys general over the potential impacts of PFAS . With a law that took effect on Jan . 1 , California banned PFAS in food packaging . Two months earlier , the Golden State had sued 3M and more than a dozen other chemical manufacturers , alleging that they continued to make and use the chemicals and downplayed their risks despite knowing about their toxicity for decades .
" From a general counsel standpoint , it ' s really important that you have a good understanding of what your risks are , and that requires data ," said Steven Cook , of counsel at Bracewell LLP , who formerly served in the EPA ' s Office of Land and Emergency Management . " That ' s always my recommendation to in-house lawyers : You need to have facts , you need to understand what you ' re dealing with ."
PFAS aren ' t a single compound . The term represents potentially thousands of different compounds ; some were intentionally manufactured , while others have been identified as likely byproducts of chemical reactions , Cook explained .
Given the widespread nature of PFAS , companies in various industries will be affected differently . According to experts , while PFAS can be in everyday products such as waterproof clothing and cookware , measuring the compounds at certain levels can be extremely difficult . Sometimes it ' s not clear that PFAS are in a product , as they can be present in quantities as small as parts per trillion , according to experts .