I’ve written in this space before about polyfluoroalkyl (PFAS) litigation, most recently here. Earlier this summer, I attended the 2024 Perrin Environmental Risk and PFAS conference in New York City. PFAS litigation was very much the centerpiece of the day, being the topic of roughly half the presentations and discussed in most presentations. But one very interesting presentation focused on different risks and litigation — those surrounding phthalates, a family of chemicals that help improve the durability and flexibility of plastics.

Phthalates have been added to most plastics since the 1920s, and they are used in other consumer products as well. Like PFAS, the term “phthalates” is overly broad and describes a large family of chemicals, some of which are endocrine disruptors and have well-documented health risks. Because plastics are everywhere, so too are phthalates. I’ve seen them dubbed the “everywhere chemical” or “the next forever chemical”. The most harmful phthalates are already banned in the U.S., and certain others are monitored and restricted by the EPA.

To date, the most prominent claims have come from women of color alleging that they have been injured by chemical hair relaxers and deceptive marketing practices. More than 8,000 cases have been consolidated into In Re: Hair Relaxer Marketing Sales Practices and Products Liability Litigation, MDL No. 3060, and most major cosmetics manufacturers are involved to at least some degree.

The parallels to PFAS litigation are considerable. Both PFAS and phthalates have been widely used for nearly 100 years in many different types of products, including those that come in close contact with skin or may even be ingested. Both are still in broad use across many consumer products and industries. Therefore, many companies may be impacted if/when substantial litigation arises.

What should companies that use plastics (and therefore likely phthalates) do to prepare?

Consider the following:

• Claims Administration – A robust defense network combined with real-time data tracking that drives actionable decisions is a must.
• Insurance – Insurance can help with the cost of defending and perhaps paying claims. It would be wise to get your insurance profile across all possible years in order. Insurance archaeologists can help if records are scarce.
• Exhaustion and Releases – If your company has been through a few rounds of insurance coverage litigation, you may have exhausted some policy limits and released some others. Getting a handle on what coverage remains is crucial.
• Notice – Once claims are filed, notice typically must be provided to insurers from whom you are seeking coverage. Setting up a process to ensure that notice is done correctly can bring peace of mind if the claims start coming in.

It remains to be seen if phthalate litigation will hit the industry as hard as PFAS litigation has. The lessons learned are timeless, however, and companies that are prepared will fare much better than those that are just hoping to stay under the radar.

Companies are encouraged to take steps now to set themselves up for success, so they are ready no matter which scenario plays out.