UK regulatory ‘gap’ brings PFAS claims risk for businesses

Katie Hancock of Pinsent Masons was commenting after a parliamentary committee in the UK opened a new inquiry into per- and polyfluoroalkyl substances (PFAS).

PFAS are a class of more than 10,000 fluorinated chemicals used in everyday products – from beauty and healthcare products, to clothing, semiconductors, medical equipment, in food and drinks packaging, in cleaning chemicals, and in firefighting foam, among other things.

PFAS chemicals each have different properties and serve different purposes – for instance, they can make products resistant to oil, water, or heat. Some of these chemicals are known to degrade very slowly – data is not available on all of them – which has led to the colloquialism ‘forever chemicals’ being used to describe them.

The Environmental Audit Committee has announced that it will consider “whether enough is being done to understand fully the risks of PFAS in the UK and whether research institutions and the Environment Agency are equipped to monitor their impact”. It also said it will “examine the UK’s regulatory framework for the use and disposal of PFAS” and look into the adequacy of UK ‘REACH’, the regulatory regime covering registration, evaluation, authorisation and restriction of chemicals. The Committee plans to compare the UK’s regulatory approach to other jurisdictions, such as the EU and US.

Among other things, the Committee is inviting written submissions from industry and other stakeholders on whether the UK should take a “precautionary approach” to PFAS regulation or develop a risk-based approach instead. Its deadline for input is Monday 26 May 2025.

In a statement, committee chair Toby Perkins MP highlighted how use of PFAS has attracted media attention, with news focused on research into – and claims made regarding – their environmental and health impacts. He added that the coverage has “shone a light that the UK’s regulatory approach is far less active than in many other jurisdictions”.

Currently, there are very few restrictions on PFAS under UK REACH. In July this year, a further restriction will begin to apply when a ban on use of Perfluorooctanoic Acid (PFOA) in firefighting foams takes effect, though OHEAP Fire and Security, a business that sells fire safety products, has said that the ban “will not affect many units at all as the chemical that is being banned hasn’t been used for more than 10 years”.

Further PFAS restrictions are currently under consideration by the Health and Safety Executive (HSE).

In its latest work programme on UK REACH for 2024/25 (21-page / 570KB PDF), the HSE said it is gathering evidence and engaging with stakeholders on potential restrictions around wide dispersive uses of PFAS such as the application of coatings or use of cleaning agents, as well as around the manufacture and placing on the market of consumer articles from which PFAS are likely to be released into air, water or soil, or directly transferred to humans.

Hancock said, however, that since Brexit, the UK has fallen behind the EU in its regulatory approach to chemicals and that this poses potential litigation risks for businesses who use or supply PFAS in the UK.

“We have already seen how PFAS litigation is growing in other parts of the world, with a ‘class action’ claim against Apple in the US perhaps the latest high-profile example in the area of popular consumer goods,” said Hancock. “We have also seen claims made pertaining to PFAS found in drinking water in the US – last year, manufacturer 3M confirmed that a US court had endorsed a settlement it had reached with public water suppliers in the US, as part of which the company expects to pay over $10 billion to support the water suppliers with PFAS remediation. 3M has said it plans to exit PFAS manufacturing by the end of 2025.”

“Perceptions that UK regulatory standards pertaining to PFAS are lower than in other parts of the world only increases the risk of litigation against businesses using or supplying PFAS-containing products – even if their activities comply with UK regulations – since it draws scrutiny of the alleged environmental and health impacts,” Hancock said. “Though it was ultimately unsuccessful, the judicial review raised against the Environment Agency over its approach to PFAS regulation under its remit shows that there is already a focus being given to making PFAS-related claims in the UK,” she said.

According to Hancock, one particular industry where PFAS litigation risk arises in the UK is agricultural fertilisation. The rules governing the spreading of sludge on such land were written in 1989 and, Hancock said, are an example of laws in effect today in the UK which have been subject to criticism as being no longer fit for purpose.

“There is a risk that land owners could raise claims against sludge suppliers in relation to PFAS content in the sludge,” Hancock said. “Claims of this nature have already been brought in the US, where sewage sludge, also known as biosolids, are also spread to land. Those claims are being vigorously defended. The judicial review brought against the Environment Agency is an example of the attention being directed towards litigation in this area in the UK.”

“In some European countries, sludge is no longer spread to land, or remediation funds have been created, as is the case in Germany, where a Sewage Sludge Compensation Fund was established in 1998 to compensate for property damage and personal injury that occurs in connection with the agricultural use of sewage sludge. Industry in the UK would benefit from further guidance from government and regulators on this topic,” she said.