PFAS RISK AND THE ROLE OF THE CORPORATE FIDUCIARY
Corporate entities are feeling the heat per-and polyfluoroalkyl substances (PFAS) are generating. PFAS manufacturers are being sued in record numbers in the US based on novel legal theories involving personal injury tort claims, product liability, environmental damage and fraud, among other things.
Heightened legal activity in other jurisdictions, including the UK and the European Union (EU), is expected. Manufacturers of products containing PFAS, and their downstream users, are also becoming embroiled in lawsuits, including restaurants that use PFAS-containing food wrappers, packagers of products and large retailers of products containing PFAS.
All this litigation, risk management and finger pointing begs the question: what is the role of corporate fiduciaries in PFAS risk management? This article explores this important question.
Background
PFAS are a large group of synthetic organic chemical substances. They contain at least one alkyl group on which all hydrogen atoms have been replaced with fluorine. Well-known PFAS contain fully fluorinated carbon chains of various chain lengths attached to a functional group, such as carboxylic or sulfonic acids. Such groups are called perfluorinated acids and include perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).
Shorter chain PFAS have been developed to replace the longer chain ones. The distinction between ‘long chain’ and ‘short chain’ PFAS is important, as their properties and hazards are quite different. PFAS also include polymers (e.g., fluoropolymers), perfluoropolyethers and polymers with fluorinated side chains. Larger polymers are considered less hazardous than smaller non-polymers because PFAS polymers are non-reactive and are too large to cause toxic effects or be absorbed and bioaccumulate in animal tissue.
Oct-Dec 2024 issue
Bergeson & Campbell, P.C.