Sylvie Gallage-Alwis examines recent PFAS litigation in France, in Corporate LiveWire

The French Government had announced that it would not wait for the proposal for a global restriction and ban of per- and polyfluoroalkyl substances (“PFAS”) at European Union level to succeed before starting to regulate PFAS in France.

On 30 May 2024, the French Senate passed a bill to ban the use of PFAS in clothing, cosmetics, and ski waxes as from 1 January 2026. This Bill is part of the ministerial action plan on PFAS announced by France on 17 January 2023, only a few days after the proposal made by Denmark, Germany, the Netherlands, Norway and Sweden on 13 January 2023, to globally restrict and ban the manufacture, marketing and use of PFAS in the European Union.

Furthermore, the Bill also provides for a ban as from 1 January 2030 on the manufacture, import, export and marketing, whether in return for payment or free of charge, of any textile products containing PFAS substances.

Moreover, a ‘polluter pays’ fee has been introduced into the Bill, under which companies operating classified facilities for environmental protection (ICPE) subject to authorisation will have to pay a fee based on the rate of PFAS release, the rate of which has been set at EUR 100 per 100 grams.

Lastly, in accordance with the French Government’s various ministerial and interministerial action plans and the recommendations made in the report by the French Member of Parliament, Cyrille Isaac-Sibille, the Bill provides for measures to monitor PFAS in drinking water and in the environment, as well as measures to better inform the public about the presence and risks of PFAS. Litigation however did not wait for this Bill.

For instance, in the Spring of 2023, a group of associations and individuals brought criminal urgent proceedings regarding environmental issues against Arkema, a global leader in specialty materials, to shed light on the alleged PFAS pollution in the Chemical Valley. The aim of the NGO “Notre Affaire à tous”, which initiated the proceedings, was to seek Arkema’s liability in connection with alleged PFAS discharges in the South of Lyon. In the scope of the first instance proceedings, the Judge responsible for matters relating to liberty and detention of the Lyon Civil Court, who had been referred the case by the French Public Prosecutor in October 2023, dismissed the criminal urgent action regarding environmental issues in a ruling handed down on 16 November 2023. Following this dismissal, the group lodged an appeal. In January 2024, the Lyon Court of Appeal dismissed the claim, ruling it inadmissible.

Following these judicial failures, since April 2024, the Prefecture of Rhône has been working on two new Orders regarding Arkema’s site in the Chemical Valley, in order to accelerate the decrease in the use and release of PFAS by 31 December 2024 as initially brought out in an Order dated 23 September 2022.

This shows that beyond the evolution of the French legislative framework, the French authorities seem determined to regulate the use and release of PFAS into the environment, surely out of fear of becoming the next targets of legal actions.

The example of the Salindres chemical platform also illustrates the current context. Indeed, in a report dated November 2023, the French association “Génération Futures” would have revealed the existence of significant PFAS pollution near the Salindres chemical platform in the Gard Department.

However, in a new joint investigation report with France 3 and RTBF (Belgium) published on 6 February 2024, this association warned of exceptionally high levels of trifluoroacetic acid (TFA) and triflic acid contamination in surface water and drinking water in neighbouring municipalities.

In view of this situation, the association is considering referring the matter to ANSES (the French Agency for Food, Environmental and Occupational Health & Safety) to assess the impact of these substances on health and on the environment, and to take legal action before the French Courts, including a criminal complaint for causing harm to fish and aggravated water pollution. Additionally, other public health actions and offences, based on surveillance obligations and drinking water quality requirements, are reportedly under review.

These examples in France are not the only ones, since the same investigations and legal disputes are also occurring throughout Europe.

Indeed, the designation of PFAS as a “concerning public health matter” on a French and European level has initiated a media, regulatory and legal chain already experienced by companies that used asbestos, for instance.

However, the outcome of this initiated process is hardly ever favourable to companies. They are being criticised for using legal substances on the grounds that the regulatory framework was not suitable, they are being stigmatised by the media and NGOs, and are subject to multiple actions (administrative, criminal, civil, regulatory investigations).

Nevertheless, as confirmed by the French Government’s Interministerial Action Plan on PFAS, published in April 2024, there is not enough scientific information and knowledge regarding PFAS, which is why Axis no. 1 of this action plan focuses on acquiring knowledge on emission measurement methods and on dissemination and exposure, and Axis no. 2 on improving and strengthening data monitoring and mobilisation.

In the absence of clear scientific information and knowledge about PFAS and their potential dangers, logic would have it that these substances should not be banned or regulated, particularly in the absence of replacement substances that would enable manufacturers to produce differently. However, the population’s concerns are once again rushing French and European politicians to state their position faster than science.