Ally Cunningham, Julia Gowin, Robert Thackston, Lathrop GPM04.29.21
There is no one reason why regulation and litigation around PFAS—per and poly-fluoroalkyl substances used in a bevy of everyday products—are heating up in 2021. But a variety of factors are converging when it comes to so-called “forever chemicals,” and cosmetics manufacturers that use PFAS would be wise to take notice and plan accordingly.
Some states have been acting on PFAS for years, but manufacturers should especially watch California, which plans to list perfluorooctanoic acid (PFOA, a type of PFAS) as a chemical known to cause cancer under the state’s Safe Drinking Water and Toxic Enforcement Act. Manufacturers should also watch Washington, DC, as President Joe Biden could move quickly on a campaign promise to designate PFAS as a hazardous substance and has an EPA chief known for aggressively targeting PFAS in North Carolina.
On the litigation front, a key marker might have come in January when Tyco Fire Products, a subsidiary of Johnson Controls, settled a class action lawsuit with 200 households in northern Wisconsin alleging their drinking water was contaminated by a nearby site that tests firefighting foam, often cited as a source of PFAS. The settlement was signal that companies who use PFAS in their products, as opposed to companies that make the chemicals themselves, like DuPont, are facing increased legal exposure.
And that’s why cosmetics manufacturers, many of whom use PFAS as an ingredient in their products, need to be on alert. Here’s what they should to do to make sure their houses are in order.
For manufacturers, the first thing to do at an inflection point like this is to know your ingredients and their sources. That might sound obvious, but some companies make hundreds of products and use materials from a wide variety of suppliers. An assessment with a PFAS focus is important.
Relatedly, moments like these show the value in dealing with reputable suppliers—companies that will respond quickly and honestly when asked what they use in the materials they sell you. Much of what suppliers use will be listed in the certificates of analysis they provide their customers. They may also be found in the product’s Safety Data Sheet (SDS), which is part of Occupational Safety and Health Administration’s Hazard Communication Standard that is aligned with the Globally Harmonized System of Classification and Labeling of Chemicals.
The fact that there is a global standard is good thing. But it’s non-binding and not all countries follow along. We’ve seen that lack of consistency with other materials determined to be harmful, and another reason why working with trustworthy and forthcoming third parties is so important. PFAS compounds may not be consistently identified in SDSs, so taking a close look to determine what ingredients are included in the materials supplied becomes all the more important.
There’s another wrinkle. Because PFAS are not yet listed as hazardous substances, they aren’t required to be listed on suppliers’ SDSs. That puts manufacturers who use PFAS in their products in a tough spot.
Companies might figure that they should hold off on digging into whether the chemicals are in their products, hoping for changing (or ebbing) tides when it comes to PFAS. But regulations around PFAS are increasing, and their designation as a hazardous substance seems increasingly likely. At this stage, the time to prepare is probably too valuable to pass up.
It’s also time to start making demands on suppliers that the certifications you require from them must now show that their products don’t include PFAS. They might balk given that the hazardous substance issue is still developing, but you’ll be ahead of the game.
Consider that, with the growing public awareness around PFAS (with cosmetics companies being among groups of retailers facing scrutiny for their use of the chemicals), pleading ignorance has an increasingly low chance of working in potential litigation--even if that litigation happens five years from now.
Of course, if looking under rocks is now prudent, it’s probably not going to be pleasant. It might force required follow-up action, which we know from experiences with other substances deemed harmful after years of widespread use; i.e., asbestos. Those experiences teach other lessons too, including the importance of balancing skepticism and openness. The plaintiffs’ bar can do a lot by putting an alleged “expert” on TV with a lab coat who is willing to pontificate on junk science claims. But consumer activism can, in fact, be a good thing that leads to important changes to how we work and live.
That said, the plaintiffs’ bar isn’t the only group that can use science. Companies working together, possibly through trade groups and similar associations, should commission their own studies to effectively weigh in on the public conversation about PFAS. Within their own organizations, companies should bring in outside experts who really understand the science. They can help test products for PFAS in the first place and help make the best decisions going forward.
To be sure, the increased attention to PFAS is just another thing for busy company leaders to worry about. But with what’s happening in California and elsewhere, we know at least one thing: It’s time for cosmetics manufacturers and companies across whole swaths of industries to start paying attention.
About the Authors
Allyson Cunningham, a partner at Lathrop GPM LLP in Kansas City, MO, focuses her practice on representing clients in administrative negotiations with federal and state agencies, and advises clients regarding their regulatory requirements and assists with litigation of environmental claims.
Julia Gowin is a partner at Lathrop GPM in the firm's Los Angeles office focusing her practice on all aspects of complex civil litigation including product liability, premises liability, toxic and mass torts and environmental law. She has over a decade of experience in the areas of asbestos and silica defense, and she currently acts as national coordinating counsel in cosmetic talc litigation.
Robert Thackston is a partner at Lathrop GPM in the Dallas office representing prominent individuals and Fortune 500 companies around the world, regularly getting called on to handle their most challenging litigation. He has defended manufacturers of products and equipment from a variety of industries, including automotive, industrial, energy, construction and consumer goods. His clients have included numerous large manufacturing companies, one of the largest meat-processing companies in the country, an American multinational toy and board game company, a multinational hospitality company, major automotive companies and charitable institutions. He has handled cases involving alleged exposures to asbestos, talc, silica, benzene, PCBs, dioxins, metals, agricultural wastes and various other chemicals.
Some states have been acting on PFAS for years, but manufacturers should especially watch California, which plans to list perfluorooctanoic acid (PFOA, a type of PFAS) as a chemical known to cause cancer under the state’s Safe Drinking Water and Toxic Enforcement Act. Manufacturers should also watch Washington, DC, as President Joe Biden could move quickly on a campaign promise to designate PFAS as a hazardous substance and has an EPA chief known for aggressively targeting PFAS in North Carolina.
On the litigation front, a key marker might have come in January when Tyco Fire Products, a subsidiary of Johnson Controls, settled a class action lawsuit with 200 households in northern Wisconsin alleging their drinking water was contaminated by a nearby site that tests firefighting foam, often cited as a source of PFAS. The settlement was signal that companies who use PFAS in their products, as opposed to companies that make the chemicals themselves, like DuPont, are facing increased legal exposure.
And that’s why cosmetics manufacturers, many of whom use PFAS as an ingredient in their products, need to be on alert. Here’s what they should to do to make sure their houses are in order.
Know What You’re Using – and Selling
For manufacturers, the first thing to do at an inflection point like this is to know your ingredients and their sources. That might sound obvious, but some companies make hundreds of products and use materials from a wide variety of suppliers. An assessment with a PFAS focus is important.
Relatedly, moments like these show the value in dealing with reputable suppliers—companies that will respond quickly and honestly when asked what they use in the materials they sell you. Much of what suppliers use will be listed in the certificates of analysis they provide their customers. They may also be found in the product’s Safety Data Sheet (SDS), which is part of Occupational Safety and Health Administration’s Hazard Communication Standard that is aligned with the Globally Harmonized System of Classification and Labeling of Chemicals.
The fact that there is a global standard is good thing. But it’s non-binding and not all countries follow along. We’ve seen that lack of consistency with other materials determined to be harmful, and another reason why working with trustworthy and forthcoming third parties is so important. PFAS compounds may not be consistently identified in SDSs, so taking a close look to determine what ingredients are included in the materials supplied becomes all the more important.
Challenges with PFAS and Supplier Certifications
There’s another wrinkle. Because PFAS are not yet listed as hazardous substances, they aren’t required to be listed on suppliers’ SDSs. That puts manufacturers who use PFAS in their products in a tough spot.
Companies might figure that they should hold off on digging into whether the chemicals are in their products, hoping for changing (or ebbing) tides when it comes to PFAS. But regulations around PFAS are increasing, and their designation as a hazardous substance seems increasingly likely. At this stage, the time to prepare is probably too valuable to pass up.
It’s also time to start making demands on suppliers that the certifications you require from them must now show that their products don’t include PFAS. They might balk given that the hazardous substance issue is still developing, but you’ll be ahead of the game.
Consider that, with the growing public awareness around PFAS (with cosmetics companies being among groups of retailers facing scrutiny for their use of the chemicals), pleading ignorance has an increasingly low chance of working in potential litigation--even if that litigation happens five years from now.
How to Harness Science
Of course, if looking under rocks is now prudent, it’s probably not going to be pleasant. It might force required follow-up action, which we know from experiences with other substances deemed harmful after years of widespread use; i.e., asbestos. Those experiences teach other lessons too, including the importance of balancing skepticism and openness. The plaintiffs’ bar can do a lot by putting an alleged “expert” on TV with a lab coat who is willing to pontificate on junk science claims. But consumer activism can, in fact, be a good thing that leads to important changes to how we work and live.
That said, the plaintiffs’ bar isn’t the only group that can use science. Companies working together, possibly through trade groups and similar associations, should commission their own studies to effectively weigh in on the public conversation about PFAS. Within their own organizations, companies should bring in outside experts who really understand the science. They can help test products for PFAS in the first place and help make the best decisions going forward.
To be sure, the increased attention to PFAS is just another thing for busy company leaders to worry about. But with what’s happening in California and elsewhere, we know at least one thing: It’s time for cosmetics manufacturers and companies across whole swaths of industries to start paying attention.
About the Authors
Allyson Cunningham, a partner at Lathrop GPM LLP in Kansas City, MO, focuses her practice on representing clients in administrative negotiations with federal and state agencies, and advises clients regarding their regulatory requirements and assists with litigation of environmental claims.
Julia Gowin is a partner at Lathrop GPM in the firm's Los Angeles office focusing her practice on all aspects of complex civil litigation including product liability, premises liability, toxic and mass torts and environmental law. She has over a decade of experience in the areas of asbestos and silica defense, and she currently acts as national coordinating counsel in cosmetic talc litigation.
Robert Thackston is a partner at Lathrop GPM in the Dallas office representing prominent individuals and Fortune 500 companies around the world, regularly getting called on to handle their most challenging litigation. He has defended manufacturers of products and equipment from a variety of industries, including automotive, industrial, energy, construction and consumer goods. His clients have included numerous large manufacturing companies, one of the largest meat-processing companies in the country, an American multinational toy and board game company, a multinational hospitality company, major automotive companies and charitable institutions. He has handled cases involving alleged exposures to asbestos, talc, silica, benzene, PCBs, dioxins, metals, agricultural wastes and various other chemicals.
