BY DAN SMITH
This weekend I was mildly concerned to see a news article stating that the wrappers for the oh-so-delicious chicken sandwiches I enjoy likely contain PFAS (per- and polyfluoroalkyl substances). Even more recently, a proposed class action was filed in the Southern District of Illinois against the keeper of the golden arches, alleging that the PFAS content in its food and food wrappers has injured customers. (Clark v. McDonald’s Corporation, 3:22-cv-00628, filed March 28, 2022).
At least some of the family of chemicals known as PFAS likely have health impacts on humans. With continuing advancements in analytical chemistry, PFAS can be detected in the parts per trillion and, for nearly ten years, have been the subject of much study—and, increasingly, lawsuits—throughout the country.
As my colleagues Alex Elkan and Joey Ponzi summarized in this article, the federal government is proceeding deliberately towards greater regulation of PFAS using existing regulatory structures.
But if PFAS has made it into my chicken sandwich, I have to ask myself, has the legal system failed us? Having pondered for the past few days and eaten one (quite delicious) sandwich in the interim, I think the answer is no.
Human civilizations have a long history of causing ourselves trouble with our own activities—and then growing, adjusting and improving. A classic example is the human waste problem and all the wonderful diseases we can give ourselves (cholera, typhoid, parasitic diseases, etc.) if our waste is not handled in a sanitary manner. After dozens of epidemics and outbreaks, we learned to separate ourselves from our waste and treat our sewage.
I also think back to DDT, Rachel Carson and Silent Spring, where the chemical at issue (and its degradation products: the chemicals produced when DDT breaks down) interfered with calcium transport in the ovarian glands of birds leading to thinner eggshells and declining bird populations. During my wonderful liberal arts education, I took a history of public health class where I wrote a paper on James Whorton’s 1975 book, Before Silent Spring: Pesticides and Public Health in Pre-DDT America. Whorton addressed the use of lead and arsenic pesticides on various food crops, including apples. I still recall an apple salesperson being quoted sometime in the early 1900s as saying you would have to eat a whole bushel of apples to get sick. (Unfortunately, at that time, there was no appreciation for the chronic impacts of lead and arsenic exposure.)
Within the legal system, I am reminded of the layers of protection that have developed in our nation over nearly 250 years. Statutes like the Clean Water Act, Safe Drinking Water Act and Resource Conservation and Recovery Act are generally intended to be forward-looking, creating a regulatory system that is intended to prevent society from injuring itself. Moreover, assuming consensus can be built among legislators, new statutes could be passed. If the statutory scheme fails to protect us adequately, torts and other common law claims provide a backward-looking approach, allowing injured parties to seek payment from the bad actor who caused them harm.
Admittedly, the system is imperfect and has its troubles. But the law does grind on towards justice. In the meantime, I think I’ll have another sandwich.
Dan Smith, a partner at Brooks Pierce, focuses his law practice on matters involving environmental, commercial, education, and state constitutional law. A former educator and environmental scientist, Dan represents businesses, boards of education, and individuals in state, federal, administrative, and appellate courts.