NGOs and PFAS: A New Element of Disclosure

Faegre Drinker Biddle & Reath LLP

Non-governmental entities are applying more public pressure on regulators and companies regarding per- and polyfluoroalkyl substances (PFAS). While state and federal regulators have been monitoring PFAS chemicals for decades, public and NGO awareness of these chemicals has been on the rise over the past few years. Recently, NGOs in the United States and internationally have become more engaged, pressing a new type of disclosure that companies should plan for as they consider their internal and external strategies for managing PFAS. The NGOs have, in effect, begun acting like third-party regulators with the goal of releasing information to drive action by government regulators, legislative bodies and the regulated community.

Recent NGO activity regarding pesticides and PFAS took state and federal regulators by surprise and has resulted in scrutiny of products that do not traditionally contain PFAS chemicals. For example, the NGO Public Employees for Environmental Responsibility (PEER) purchased an off-the-shelf pesticide stored in a high-density polyethylene container (HDPE), tested the pesticide, and after finding that the product contained PFAS, publicly announced its findings. The EPA confirmed those results in a January 2021 press release, stating EPA had “determined that fluorinated high-density polyethylene (HDPE) containers that are used to store and transport a mosquito control pesticide product contain PFAS compounds that are leaching into the pesticide product.” In the same announcement EPA recommended that “companies using fluorinated containers, and entities that provide container fluorination services, engage in good product stewardship and examine their distribution chains to identify potential sources of contamination.” This admonition by EPA was intended to provide notice to the private sector that this tactic would likely be employed by NGOs again in the future.

The EPA warning was prescient as other NGOs have adopted tactics similar to PEER. Recently the Environmental Defense Fund released its own analysis of potential PFAS contamination resulting from fluorination claiming that “an [EPA] investigation into PFAS-contaminated pesticides [may] have much broader, concerning implications.” International NGOs have also begun a search for PFAS in additional products in the EU. Notably, testing conducted by European NGOs is often done to publicize any “measurable” PFAS content. In other words, any PFAS detection becomes the object of public scrutiny. 

While Congress and EPA will no doubt continue working on legislation and regulation to address PFAS, the pace of their progress will be methodical and to a large extent transparent. While the U.S. House of Representatives recently passed legislation mandating certain regulatory actions on PFAS, even those steps are spread out over the next several years and must still pass the Senate. Even if EPA were to begin taking aggressive regulatory action, it could not be done immediately — and EPA would have to follow the established regulatory process. However, actions being taken by NGOs offer no such transparency or process, and it is clear that government regulators are not and will not be the only source of examination that companies face on PFAS issues.

This distinction between scrutiny by regulators and NGOs is significant and warrants company attention and action to avoid surprise revelations about their products. Unlike dealing with government regulators, NGOs often provide no notice or opportunity to review test results. They just announce their findings publicly and demand that government regulators and the impacted company do something — now. This kind of NGO-driven regulatory tactic isn’t completely new and is possible to manage, but that management needs to start before you get an unwelcome call asking for comment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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