PFAS podcast series: a recap

PFAS – per- and polyfluoroalkyl substances, also known as "forever chemicals" – have rapidly emerged as a key legal and commercial risk area for businesses to think about as part of their ongoing operations and during transactions. 

Across three podcasts, our lawyers explore how PFAS is currently regulated, how it affects M&A deals, and how it is playing out in the courts. Each episode covers different ground, but together they show just how quickly the landscape is evolving. Businesses that get ahead now, rather than waiting for certainty, will be in a much stronger position than those that do not.

Podcast: Overview of PFAs regimes in the UK, EU and US

• PFAS can be found in everything from non-stick cookware and food packaging to firefighting foam and waterproof clothing. What makes them particularly challenging is that they do not break down and they build up in people, animals and the environment over time.
• In our first episode, Claudia Harper, Lauren Bachtel and Sebastian Meyn unpack how the UK, EU and US are each tackling PFAS through regulation.
• In short, the UK has banned only a few specific PFAS and there is no universal ban on the horizon, though a new UK PFAS action plan and an ongoing Parliamentary inquiry suggest more is coming.
• The US has no single federal PFAS law but does have a patchwork of federal laws which regulate certain uses of PFAS, particularly in drinking water and specific products.
• The EU, by contrast, is going furthest fastest, pursuing a novel "universal" ban on PFAS that would treat almost all 10,000 PFAS as a single class rather than evaluating them one by one – described in the episode as a real paradigm shift in how chemicals regulation normally works.
• The takeaway for any multinational is not to wait for regulatory certainty but to start mapping where PFAS sit in your products, processes and supply chain, and prioritise action in the jurisdictions and sectors where the risk is highest.
• Click here to listen.

Podcast: How to deal with PFAs in M&A transactions

• Potential PFAS contamination is increasingly surfacing as an issue for consideration during the transaction lifecycle.
• In this episode, Aileen Buchanan and Lauren Bachtel are joined by Belinda Valledy of ERM to work through how PFAS risks can be managed across the deal lifecycle.
• On due diligence, the key message from the technical side is that buyers should ask targeted questions on historic use, firefighting foam and manufacturing processes, and where PFAS is more likely to be present, undertake sampling.
• On transaction documents, where PFAS is found, buyers and sellers are increasingly negotiating specific indemnities to cover potential clean-up costs. These work best for contamination that is well understood. Where the risk is less clear, it tends to be priced in instead.
• On insurance, W&I cover is now standard, but insurers are cautious about PFAS and cover is often limited or excluded, so it pays to involve brokers early.
• The takeaway is to involve technical and legal experts early so they can help you identify and quantify those risks.
• Click here to listen.

Podcast: PFAs litigation landscape in the US, EU and UK

• In this podcast, Satindar Dogra hosts Anke Krause, Sarah Martin and Elizabeth Raulston for a discussion on the litigation landscape.
• In the US, PFAS litigation is already well underway, with settlements into the billions having been agreed and many personal injury claims making their way through the courts.
• Europe is catching up fast with several contamination claims on foot against manufacturers in Belgium and France, criminal proceedings successfully brought in Italy, a Swedish Supreme Court decision awarding damages for elevated PFAS blood levels and proceedings brought against the French state for failure to prevent, monitor and remediate PFAS generally.
• The UK has been quiet by comparison, but that is changing, with both regulators and residents seeking to require companies to pay damages or clean-up costs for PFAS contamination.
• Click here to listen.

More information

For more information on PFAs, see our blog posts:

• EU: Universal PFAS restriction process enters its decisive phase: SEAC draft Opinion published – public consultation open
• PFAS in France: NGOs and residents sue the State over alleged regulatory failures