NAS PFAS Report Will Influence Lawsuit Trends
Today, the National Academy of Science (NAS) released a long-awaited report on its multi-year assessment of PFAS scientific literature and its findings with respect to correlations between PFAS exposure and human health, recommendations for treatment providers for individuals known to have been or suspected to have been exposed to PFAS, and recommendations for the Centers for Disease Control (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR). The NAS PFAS report will have a significant impact on PFAS litigation, particularly personal injury and medical monitoring litigation, for years to come. Any company with current or legacy PFAS use must pay close attention to the NAS PFAS report and recommendations.
NAS PFAS Report
A couple of years ago, the NAS began an undertaking to study recommendations that it could make to clinicians about PFAS testing in patients and how the test results can inform patient care. The NAS set out to examine the health effects for humans from PFAS and use any correlations to develop principles for treatment providers on exposure reduction. The results of the NAS evaluation of health impacts from PFAS were released today in the Guidance On PFAS Exposure, Testing and Clinical Follow-Up (2022).
The NAS panel reviewed human studies with respect to seven PFAS, which its conclusions are directed towards: PFOA, PFOS, PFHxS, PFDA, PFNA, PFUnDA, and MeFOSAA.
In the NAS PFAS report “Health Effects of PFAS: Conclusions” section, the NAS concludes that there is “sufficient evidence” for certain PFAS to be associated with decreased antibody response, dyslipidemia, decreased infant and fetal growth, and increased risk of kidney cancer. The NAS found “limited suggestive evidence of an association” between certain PFAS and an increased risk of brest cancer, increased risk of testicular cancer, liver enzyme alterations, increased risk of pregnancy induces hypertension, thyroid disease, and increased risk of ulcerative colitis. Finally, the report found insufficient evidence between PFAS and a dozen other health issues.
The nearly 300 page report also details recommendations for medical providers based on the health effect conclusions, including:
Medical providers should perform environmental exposure assessments with patients, including asking occupational questions;
Consult with occupational health professionals to advise on workplace practices to reduce PFAS exposure;
Advise patients with elevated PFAS in drinking water to filter the drinking water;
Offer PFAS blood serum testing to patients likely to have a history of high exposure, whether through occupational pathways or non-occupational pathways;
Conduct blood serum testing to determine concentrations of PFAS in a patient’s blood. At levels of two nanograms or less of PFAS per milliliter, adverse health effects are not likely. Findings between 2 nanograms and 20 nanograms per milliliter should be considered for potential health effects, especially in sensitive populations. Results above 20 nanograms should be considered patients with increased risk of adverse health effects; and
Depending on the concentration of PFAS in the blood that is found, the NAS report makes several recommendations, including screening for certain diseases or health conditions and reducing exposure.
The report also calls for more data on understanding PFAS exposure among breastfed infants. It advises federal environmental health agencies to conduct research to evaluate PFAS transfer to, and concentrations in, breast milk and formula.
Impact On Future Litigation
The NAS PFAS report, if the CDC adapts its treatment guidelines for clinicians, will serve to inform front line health providers with information to include PFAS testing in routine medical care, as well as recommendations for advising patients on reducing exposure to PFAS.
The litigation impacts of the NAS report will most immediately be felt with medical monitoring claims. These claims have a significantly lower bar than traditional personal injury cases for proving causation, and the NAS findings provide persuasive evidence to present to a court regarding the need for medical monitoring in certain communities. Companies should expect to see an increase of lawsuits seeking medical monitoring as the remedy as a result of the NAS report.
In addition, in the next few years, the NAS report will serve as a piece of persuasive evidence in PFAS personal injury cases to demonstrate the findings of a scientific board with respect to PFAS and effects on human health. While we have previously written that such lawsuits are likely still a few years away given the current scientific gap in “dose response” evidence, which would be a key element to a personal injury claim, companies with PFAS use concerns should still nevertheless pay close attention now to the NAS report and consider the NAS report in any risk evaluation undertaken.
It is of the utmost importance that businesses along the whole supply chain in various industries evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate PFAS at an ever-increasing pace. Similarly, state level EPA enforcement action is increasing at a several-fold rate every year. Companies that did not manufacture PFAS, but merely utilized PFAS in their manufacturing processes, are therefore becoming targets of costly enforcement actions at rates that continue to multiply year over year. Lawsuits are also filed monthly by citizens or municipalities against companies that are increasingly not PFAS chemical manufacturers. One of the best ways to prevent costly litigation is to understand not only current but historical risks and closely assess how business practices can be adjusted to minimize such risk.