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3M argues against the risk-based approach in court

3M tells the court that the damages from their PFAS chemicals are the result of unforeseeable causes

These unforeseeable causes are exactly what researchers and NGOs have warned about for decades

Published on 20 Jun 2023

The so-called risk-based approach to harmful chemicals is a fundamental idea upon which the chemical industry rests. Advocates of this approach argue that as long as you limit exposure to a hazardous chemical, it doesn’t pose a problem. Most chemical legislations worldwide follow this principle; that’s why there are hundreds of thousands of chemicals with unknown effects in circulation and thousands that we know are detrimental to human health and the environment.

ChemSec and others believe that relying solely on a risk-based approach is highly problematic because the most harmful chemicals are impossible to control once they leave the factory gate. Even though there are clear safety instructions, they can be misused or altered.

What’s interesting now is that the PFAS producer 3M seems to agree that the risk-based approach is not viable. At least not when the company is facing legal action. 

Recently, 3M agreed to a tentative 10 billion dollar settlement with several U.S cities regarding PFAS-contamination of the water systems.

3M, as a manufacturer, lacked the necessary control over its products after the point of sale.

In court, 3M defended itself with an interesting set of arguments. They argued that the allegations against them ought to be “barred” (legal speak for “should not be pursued by the court”) because they weren’t responsible for the potential damages from PFAS. Rather, they were “the result of independent, unforeseeable” causes, or because “3M’s products were unforeseeably misused or altered”.

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This is precisely what ChemSec, along with toxicologists and large parts of the scientific community, have been warning about all along.

In a world of complex global value chains, it is impossible to accurately estimate possible exposure to a chemical throughout its lifecycle; from the workers involved in the production to the end-user and then on to waste or recycling into a new product.

Now 3M uses this exact reasoning when defending itself in court. Even more to the point, they argue:

“3M, as a manufacturer, lacked the necessary control over its products after the point of sale.”

When the stakes are high, the truth tends to reveal itself. In court, when billions are on the table, one of the biggest PFAS manufacturers in the world admits they cannot control what happens to their harmful products. That should be a lesson for all regulators worldwide: the best way to address the chemical pollution crisis is to ensure that harmful chemicals never leave the factory gates in the first place.