Much of the recent public and legal spotlight has been on per- and polyfluoroalkyl substances (PFAS), the so-called forever chemicals pervasive in consumer products and linked to health risks. But PFAS are not the only chemicals drawing scrutiny. Litigation trends in the chemical arena have increasingly followed the science. Research concerning the impact of a broader category of endocrine-disrupting chemicals on the human body is driving a new wave of toxic tort litigation.
While litigation regarding these chemicals has occurred periodically for decades, companies that use or have used these chemicals would be well served to monitor both the science and the evolving litigation landscape to support effective and proactive risk management.
What Are Endocrine Disruptors?
The endocrine system in the human body produces hormones, such as estrogen, testosterone or cortisol, that then interact with receptors in the body to regulate human growth, development, reproduction, metabolism, energy balance and body weight.
Increasingly, scientific research has examined the impact that certain chemicals used in everyday household, personal care and other consumer products have on the endocrine system. The chemicals that interfere with the endocrine system have been aptly called endocrine-disrupting chemicals (EDCs). These chemicals can work in a variety of ways, including overstimulating receptors or blocking receptors, preventing hormones from functioning normally.
There are potentially over 1,000 types of EDCs. Below are three groups that are already or will likely be targets of large-scale litigation in the coming years.
Phthalates
Phthalates are a family of chemicals that improve the flexibility of plastic compounds, making products both sturdy and lightweight, and have been added to plastics for over 100 years. Phthalates are used in consumer products such as cosmetics, food packaging, medical products, adhesives, detergents and even products for children. Like PFAS, the term “phthalates” describes a large family of chemicals, some of which have been deemed EDCs.
The most prominent phthalate litigation to date has been filed against manufacturers of chemical hair relaxers for injuries (such as a significantly increased risk of uterine cancer) allegedly sustained from phthalates, as well as deceptive marketing practices. Over 10,000 cases have been consolidated into one Multidistrict Litigation, with nearly all the major cosmetics brands having been named. The initial lawsuits were filed on the heels of an October 2022 National Institutes of Health study linking chemical hair straighteners to an increased risk of certain cancers. This study, along with others, is cited in the consolidated class action complaint as a basis for the claims.
The hair relaxer litigation is instructive in a number of significant ways. First, it shows how foundational scientific research is in driving large-scale litigation. Second, the complaint shows that endocrine-disruptor claims are not confined to traditional toxic tort theories. Rather, misleading advertising claims are being brought alongside more-traditional product liability theories to maximize recovery. And critically, as the discovery process unfolds, companies can see in real time how courts are likely to weigh the scientific evidence in establishing elements of these various claims.
Bisphenol
Bisphenol A (BPA) is a chemical that has been used in the production of plastics since the 1960s to strengthen products. Humans are primarily exposed to BPAs through their food because BPAs can leach into food or drinks from the protective coatings of canned foods and from consumer products such as tableware, plastic food storage containers and water bottles.
The US Food and Drug Administration has banned BPA in children’s sippy cups and baby bottles. However, the federal government has not completely banned BPA.
Bisphenol S (BPS) is another EDC belonging to the bisphenol group. BPS is frequently used to replace BPA in paper receipts. However, BPS has similar health concerns as BPA. In the United Kingdom, BPS has been linked to reproductive issues, and California has also added it to a list of chemicals known to cause reproductive issues.
The Center for Environmental Health (CEH), a US-based nonprofit, filed a suit in April of this year against dozens of retailers and other businesses for the use of BPS in their receipts. CEH has stated that the concentrations were so high in some receipts that touching only one receipt with BPS for 10 seconds resulted in exposure above the safe-harbor level, which requires a clear and reasonable warning to consumers.
Parabens
Methylparaben, propylparaben, butylparaben, ethylparaben and other parabens are common preservatives in cosmetics and personal care products. Parabens have been claimed to be linked to breast and uterine cancer because parabens in cosmetics can be absorbed through the skin and disrupt endocrine functions, particularly in women.
In recent years, major cosmetics companies have faced lawsuits for their use of parabens, as well as for claiming products are “clean” when there is the presence of parabens. As with the other chemicals discussed, liability theories turn on linking evidence from scientific studies to the long-term use of widely marketed personal care products containing such substances.
Why This Matters
PFAS litigation has shown how quickly scientific research can drive large-scale litigation targeting a range of companies with significant legal, regulatory and reputational exposure. Phthalates, bisphenols and parabens could be next. Businesses that prepare now—by auditing, reformulating and revisiting product claims—may be better positioned to weather the potential rise in toxic tort litigation.
[View source.]
