As the EPA nears finalizing recently proposed environmental regulations related to per- and polyfluoroalky substances (“PFAS”), corporate America waits with bated breath.

Businesses involved in the manufacturing and sale of PFAS or PFAS-containing products are closely monitoring the legal landscape surrounding PFAS litigation. With the pending multibillion-dollar settlements between 3M, DuPont-related entities, and U.S. public water providers, the public is finally becoming more aware of PFAS. Public sentiment is now turning towards holding companies traditionally associated with making PFAS (such as 3M and DuPont) responsible for addressing the environmental and public health concerns related to PFAS.

There is increasing concern, however, toward keeping a clear line between the manufacturers of PFAS, who understood the damage their products would cause, and the downstream businesses who purchased and used PFAS in their products. Often, these downstream businesses were unaware that their products contained PFAS, or they failed to fully appreciate all the risks associated with using PFAS in their products, because the makers of the PFAS historically withheld or covered up that information. Thus, over the last 70 years, PFAS made its way into thousands of products throughout the stream of commerce, including cosmetics, carpets, food packaging, and clothing, with many of the companies involved in making those products not realizing that PFAS might be involved.