Due to rising recent media attention on the issue, the public has become increasingly aware of the potential dangers of the widespread use of perfluoroalkyl and polyfluoroalkyl substances (PFAS) to human health and the environment. PFAS comprise over 4,700 synthetic chemicals, which have been in use since the 1950s due to their beneficial properties, such as high physical, chemical, and thermal resistance, as well as their ability to repel oil and water. These chemicals are found not only in industrial applications like firefighting foams but also in everyday consumer products such as dental floss, eye makeup, water-resistant fabrics, non-stick cookware, and stain-resistant coatings on carpets or upholstery.
Despite their useful properties, PFAS can also accumulate in organisms and persist in the environment, thus earning the label “forever chemicals”. Most public exposures to PFAS occur through the consumption of PFAS-contaminated water or food. This exposure poses potential harm to reproductive and endocrine systems, increasing the risk of certain cancers as well as causing developmental effects or delays in children.
Unsurprisingly, the growing awareness of the dangers of PFAS has led to a proliferation of class actions in the United States, with Canada following suit. Several US states and the US Environmental Protection Agency (EPA) have taken significant steps to regulate PFAS. While Canada is also taking steps to regulate these substances, it lags behind the US both in litigation and regulation. The developments in the United States may thus be telltale signs of the future regulatory and litigation landscape for PFAS in Canada.
US Litigation and Regulatory Tide on PFAS
US Litigation
Significant class actions regarding PFAS have been brought in the US targeting both manufacturers of PFAS as well as other companies that sell or use PFAS in products. Notably among the class actions brought included the 2018 class action by American public water utilities alleging that the 3M company contaminated US public drinking water systems through its PFAS-containing firefighting foams. The utilities eventually settled with 3M for a sum capped at $12.5 billion to be paid out over 13 years. About 300 American drinking water providers serving the vast majority of the US population also brought a claim against Chemours, DuPont, and Corteva, that also resulted in a settlement of $1.185 billion.
In relation to PFAS use in firefighting foams, thousands of cases have been centralized before the District of South Carolina Court. They relate to firefighting foams containing two types of PFAS that are alleged to have contaminated groundwater near various military bases, airports and other industrial sites where these foams were used to extinguish liquid fuel fires. Claims relate to personal injury, the need for medical monitoring, property damage and other economic losses.
In recent years, PFAS litigation has increasingly taken the form of personal injury tort cases given improvements in science showing the effects of PFAS on human health. Fast food restaurant chains, including McDonalds and Burger King, have been hit with class action lawsuits related to food packaging containing PFAS. It is expected that new claimants and defendants will continue to be named in such lawsuits, given the proliferation in the distribution and use of PFAS substances since their inception.
US State-Level Regulation on PFAS
There is a notable rise in US regulatory action at the state level in relation to the use of PFAS in consumer products. In October 2024, California passed two new bills to regulate PFAS in menstrual products and juvenile products, textile articles, and food packaging. California law also requires cookware manufacturers to list on their label the presence of PFAS and prohibits the sale and distribution of food packaging containing PFAS at levels exceeding 100 parts per million.
Maine, Washington and Minnesota have also passed laws that will prohibit the sale of all products containing intentionally added PFAS. Connecticut requires that manufacturers of certain products, such as apparel, cleaning products, and cookware, provide a report to the Connecticut Department of Energy and Environmental Protection outlining the use and amount of PFAS in the product.
The regulatory landscape proposing to address PFAS at the state level in the US is likely to keep intensifying with Illinois, New York, Vermont, and Wisconsin also proposing to ban the use of PFAS in all products.
US Federal Action on PFAS
The US EPA has taken numerous steps under the Biden-Harris administration to regulate PFAS in recent years. In September 2024, the EPA published final science-based water quality concentrations for 10 PFAS, designed to help states and Tribes protect fish and other aquatic life from these chemicals. Earlier in 2024, the EPA finalized a rule to designate two widely used PFAS – PFOA and PFOS – as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund. This designation will expose manufacturers, suppliers and other alleged polluters to cleanup costs associated with contamination caused by PFAS, and additional regulatory costs.
The EPA has also issued several new standards and guidelines to address PFAS contamination. In April 2024, the EPA issued the first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful PFAS. It also released updated interim guidance on the destruction and disposal of PFAS-containing materials, building on earlier guidance from 2020.
With respect to new and new uses of PFAS, the EPA has proposed a framework for addressing them under the Toxic Substances Control Act, which will ensure that these chemicals are extensively evaluated before they are allowed to enter commerce. The EPA has also added nine PFAS compounds to the 196 already listed under the Toxic Release Inventory with respect to which reporting requirements under the Emergency Planning and Community Right-to-Know Act will come into effect in 2025.
Canadian Litigation and Regulatory Tide on PFAS
Much like the US, Canada has seen a growing public concern over PFAS with a surge in PFAS litigation and regulatory efforts, particularly at the federal level.
Canadian Litigation
Canadian litigation claims related to PFAS commenced later than in the US, but they are nonetheless becoming a more frequent part of Canada’s litigation landscape. Notably in 2021, an Ontario court certified a class action against the National Research Council of Canada. The class action related to the alleged PFAS contamination of properties adjacent to the National Fire Laboratory in Mississippi Mills, Ontario, which had been used for research and development of fire safety related matters, including the testing of firefighting foams containing PFAS.
In 2024, the B.C. government launched a national class action claim in the courts of British Columbia that echoed that of US water utilities against manufacturers, marketers and distributors of PFAS including 3M, DuPont, Tyco and BASF. The claim was brought on behalf of all provincial and territorial governments in Canada as well as municipalities, regions and other local governments. It seeks to recover the costs of detecting and removing PFAS contamination of drinking water systems from February 18, 1970, until the date that the lawsuit is resolved.
Other class actions were also brought in 2024 in both Ontario and British Columbia against major chemical manufacturers, distributors or retailers of PFAS. The actions were brought on behalf of private well owners and relate to the PFAS contamination of well water at their properties. They claim the costs of testing, treatment, monitoring, and other consequential damage arising from the contamination.
Canada’s Evolving Regulatory Landscape on PFAS
PFAS may be regulated at both the federal and provincial levels in Canada. At the federal level, the most well-known classes of PFAS are listed on the Toxic substances list: schedule 1 of the Canadian Environmental Protection Act, 1999 (the “CEPA”): perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA), and long-chain perfluorocarboxylic acids (LC-PFCAs). These substances are then regulated by the Prohibition of Certain Toxic Substances Regulations, 2012 (the “Prohibition Regulations”), which prohibit the manufacture, use, sale and import of these substances and products that contain them, with limited exemptions including for use in some firefighting foams and photolithography and photographic films, paper and printing plates.
In August 2024, Health Canada in collaboration with provinces and territories also introduced an objective for PFAS in drinking water, replacing the existing drinking water guidelines for PFOS and PFOA, and nine screening values derived for individual PFAS. The objective is 30 nanograms per litre (ng/L) for the total combined concentrations of 25 different PFAS in drinking water, with the recommendation to keep concentrations as low as reasonably achievable. This objective is intended as interim guidance for agencies responsible for public health while Health Canada works to develop a more comprehensive health-based guideline.
The Canadian Food Inspection Agency has also created an interim standard for PFAS biosolids imported or sold in Canada as fertilizers. The standard was enforceable as of October 18, 2024 and serves to mitigate risks to human health and the environment from land application of heavily contaminated biosolids sold as commercial fertilizer.
In the past few years, the Trudeau-Liberal government announced its intention to designate PFAS as a class of toxic substances under the CEPA, which would impose further regulatory restrictions on the manufacture, use, sale and import of products containing PFAS. In 2023, the government released a Draft State of Per- and Polyfluoroalkyl Substances (PFAS) Report (the “Draft Report”), that later updated in July 2024. The Draft Report and its update propose to list the entire class of PFAS substances, excluding fluoropolymers, at Schedule 1 of CEPA.
To determine its regulatory approach to these substances beyond listing them at Schedule 1 of CEPA, the government also issued a notice under s. 71(1)(b) of CEPA on July 27, 2024, requiring that companies report information on the manufacturing, importing and use of 312 types of PFAS substances by January 29, 2025.
At the provincial level, Canadian provinces lag behind US states in the regulation of PFAS, with most regulation focusing on remediation of PFAS at contaminated sites. British Columbia regulates PFAS under the Contaminated Sites Regulation of the Environmental Management Act. Alberta provides numerical risk-based guidelines for the remediation of PFOS and PFOA at contaminated sites under the Tier 1 Soil and Remediation Guidelines. Québec has also introduced a Characterization Guide for Contaminated Sites that briefly addresses PFAS.
Ontario has not taken any action on PFAS to date but has published a “Focus on Per-and Poly-Fluoroalkyl Substances (PFAS)” report providing a general overview for public health practitioners on the sources, exposures, health effects of PFAS. Regarding drinking water guidelines for PFAS, most provinces presently refer back to the Health Canada objective released in 2024 on this issue.
Conclusion
As the regulatory landscape surrounding PFAS continues to evolve in both the US and Canada, the “forever chemicals” it is concerned with will remain a pressing concern for public health and the environment given the bioaccumulation of these substances in organisms and biomagnification through the food chain.
The confirmed as well as anticipated changes to the federal government administrations of both the US and Canada in 2025, however, create a lot of uncertainty as to how this regulatory landscape will continue to unfold, whether certain steps to regulate these substances will be walked back.
As the science on PFAS continues to demonstrate the effects of these substances on both human organisms and nature, and given the challenges surrounding the remediation of contaminated sites or drinking water systems, it is essential that governments at both the federal and provincial levels continue to take a proactive approach to regulating these substances and mitigating their impacts and not leave these matters solely at the hands of judges and litigators.
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