PFAS's Forever Problem: Ohio Lawsuit Against Chemical Companies Fizzles Out

Big chemical companies had a major win on Monday, as a court of appeals reversed a decision by a lower court that would have allowed 11.8 million Ohio residents to sue for the presence of "forever chemicals" in their blood.

The lawsuit targeted 3M Co MMM, DuPont de Nemours Inc DD, Corteva Inc CTVA, Chemours Co CC, and others, aiming to hold these companies accountable for the presence of per- and polyfluorinated substances, commonly known as PFAS, in the human body.

What Are ‘Forever Chemicals'?

PFAS were first developed in the mid-20th century and were quickly introduced to the market for their outstanding water-repellent and non-stick properties. DuPont was the first company to introduce the widespread use of PFAS in the development of Teflon.

PFAS can be found today in thousands of consumer products, including coated cardboard and paper wrappers for food products, water-repellent clothes, non-stick cookware as well as personal hygiene products, according to the Environmental Working Group, a non-profit focused on toxic chemicals, drinking water pollutants and corporate accountability.

PFAS can be found in the blood of most Americans, including newborn babies, as well as in the water supplies of many jurisdictions, affecting at least 19 million people in 43 states. They accumulate in the body and don't break down in the environment, which is why they're referred to as "forever chemicals."

While initially believed to be inert, PFAS have been associated with the onset of cancer, reproductive disease, reduced immunological response and more illnesses.

Several efforts have been made at the federal and state levels to limit the amount of PFAS and related chemicals that can legally be found in drinking water, yet the Environmental Protection Agency has not set legal boundaries, and no regulation can be found across the country except for a handful of states.

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The Ohio Case

On Monday, the 6th U.S. Circuit Court of Appeals from Cincinnati rejected a previous decision by a lower Ohio court, filed by plaintiff Kevin Hardwick, which attempted to make 10 companies in the chemical industry liable to lawsuits by Ohio residents on account of PFAS present in the blood, Reuters reported.

In 2020, a study commissioned by the EPA found that more than 50 water systems in Ohio contained PFAS. A separate study from 2021 by the Ohio Environmental Protection Agency found the chemicals in more than 100 public water systems.

The plaintiff’s case was based on the fact that five chemicals in the PFAS category were found in his blood. Hardwick is a former firefighter, and PFAS are a main ingredient in Firefighting foam.

According to Circuit Judge Raymond M. Kethledge, "Hardwick does not know what companies manufactured the particular chemicals in his bloodstream; nor does he know, or indeed have much idea whether those chemicals might someday make him sick."

Additionally, a challenge to Hardwick’s case was the fact that, among the thousands of companies that manufacture PFAS, he specifically targeted only 10 companies for the lawsuit.

3M and Chemours are, nonetheless, among the top 12 producers of PFAS globally, along with AGC ASGLY, Arkema SA ARKAY, Daikin Industries DKILY, Solvay S A SLVYY, Merck & Co Inc MRK, Bayer AG BAYRY, BASF SE BASFY, Honeywell International Inc HON, as per ChemSec data.

"Seldom is so ambitious a case filed on so slight a basis," wrote the judge, noting that Hardwick's class action attempted to represent "every person residing in the State of Ohio—some 11.8 million people."

Hardwick's inability to prove that the compounds caused any damage to his health, as well as his inability to trace those chemicals back to the companies he accused, were enough for the court to vacate the case.

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