DuPont takes heat over chemical in Teflon pans.

Cookware coated in Teflon probably resides in your kitchen, as it does in the homes of most Americans. But Teflon's manufacturer, DuPont, while touting the health benefits and convenience of cooking on nonstick surfaces, hasn't told you about the hazards of its pots and pans, according to proposed multi-district litigation in Iowa that may combine at least 15 state class actions.

It's not just a surface problem. Wilmington, Delaware-based DuPont makes a chemical called perfluoroctanoic acid (PFOA or C-8) to use in Teflon. In 2005, it settled a lawsuit with the residents of a West Virginia town who claimed the company contaminated water supplies with the chemical, knowing it had been linked to birth defects and other health problems.

Discovery in that suit led to an EPA investigation and settlement, likely changes to the agency's risk rating of the chemical, and an ongoing investigation by the EPA's criminal division.

DuPont admitted no liability in the West Virginia suit, and it maintains Teflon is safe for household use. But it faces increasing litigation--potential personal injury suits for poisoning groundwater and perhaps workers with PFOA, as well as claims that it deceived consumers by failing to disclose the health risks it knows of.

Perfluoroctanoic acid is a synthetic chemical used in producing Teflon and many other products, including stain-repellent carpets and clothing, surface treatments for automobile and furniture upholstery, fire-fighting foams, and paper coatings for food packaging. 3M stopped making the chemical in May 2000 because of concerns about its toxicity, and DuPont is now the sole manufacturer in the United States--a $1 billion business in 2004.

PFOA is one of 15 perfluorochemicals detected in human blood; studies have found it in the bloodstreams of 95 percent of Americans. The chemical can remain in the body for decades, and it persists indefinitely in the environment and has no known breakdown mechanism. It has been linked to cancer, reproductive problems, and developmental effects in animal tests.

The EPA convened a scientific advisory board to make recommendations regarding PFOA after its own litigation over the chemical, and early this year the board recommended it be relabeled a "likely human carcinogen."

Investigation and discovery

The EPA's suit was spawned by a class action in West Virginia. Residents living near DuPont's Washington Works plant in Parkersburg claimed the company pumped PFOA into the ground, disposed of it in dumps, and blew it into the air, contaminating their water supplies and the Ohio River. The suit alleged negligence and strict liability based on improper disposal of the chemical. (Leach v. E.I. DuPont de Nemours & Co., No. 01 C-608 (W. Va., Wood County Cir. Ct. filed Apr. 10, 2002).)

The suit said internal company documents showed it knew for over 20 years that PFOA was toxic to animals and caused organ abnormalities. It also said the company set internal guidelines for safe drinking water levels of I part per billion (ppb), but workers had a median of 490 ppb in their blood--more than 60 times that found in most people.

In a 2005 settlement, DuPont paid damages to class members, earmarked money for health and education projects, paid to install filters at six water-treatment plants, and allocated funds for a community study led by three independent epidemiologists to determine whether PFOA has adverse health effects. If the study finds that it does, DuPont will pay millions for medical monitoring of 80,000 area residents.

"If there is a connection, about a year from now this will be the hottest topic since [toxic] mold," said lead plaintiff attorney Harry Deitzler of Charleston, West Virginia.

Based on information obtained in Leach discovery, the EPA initiated a yearlong investigation and sued DuPont for violating the Toxic Substances Control Act by not reporting the results of tests it conducted. DuPont also paid for hiding information about PFOA human and environmental health risks and failing to provide all the toxicological data it had gathered on PFOA after a 1997 EPA request for that information.

In 2005, DuPont settled for $16.5 million and agreed to give the EPA and independent scientists information it had about potential PFOA risks to people and the environment. It also agreed to study within three years the likelihood of chemicals used in its products to break down and release PFOA. (In re E.I. DuPont de Nemours & Co., Nos. TSCA-HQ-2004-0016, RCRA-HQ-2004-0016, TSCA-HQ-2005-5001 (EPA Dec. 14, 2005).)

Other communities around DuPont plants that used PFOA have expressed concern about their water supplies. In April, two New Jersey residents filed a potential class action for residents near the Chambers Works plant in Salem County for "intentional, knowing, reckless, and negligent acts and omissions of DuPont in connection with the contamination of human drinking water supplies." (Rowe v. E.I. DuPont de Nemours & Co., No. 1:06CV01810 (D.N.J. filed Apr. 27, 2006).) The complaint says a 2003 company report found PFOA levels in the Delaware River had reached 194 ppb and alleges that DuPont failed to take measures, similar to those it took in West Virginia, to protect New Jersey residents.

Hiding Teflon dangers

Potential class actions in at least 15 states allege that DuPont hid studies showing that Teflon heated to 464 degrees (which a pan can reach in two minutes on a conventional stovetop burner set at high) emits toxic gases and particulates that have killed pet birds in unventilated kitchens and caused extreme lung damage to rats within 10 minutes; that at 680 degrees, Teflon pans released at least six toxic gases as well as PFOA; and that DuPont's own test results document adverse health effects and birth defects from PFOA exposure.

These deceptive-marketing and failure-to-warn suits have been consolidated by the U.S. Judicial Panel on Multi-district Litigation and transferred to Iowa to be overseen by Chief Judge Ronald Longstaff and Magistrate Judge Celeste Bremer. (In re Teflon Prods. Liab. Litig., No. 4:06-MD-01733 (S.D. Iowa filed Mar. 3, 2006).) If certified as a class action, up to 10 million people could be included. Plaintiff attorneys involved say they will seek compensatory damages to reimburse class members for the cost of purchase, a system of medical monitoring for consumers, and a fund for independent scientific researchers to further investigate health risks.

"We knew when we filed that it was going to be a big suit. There really isn't any household that doesn't have Teflon-coated pots and pans, so we know the impact will be widespread," said Kimberley Baer of Des Moines, who filed a state class action on behalf of all Iowans who own Teflon cookware.

At press time, the attorneys involved were scheduled to file an amended complaint focusing on DuPont's failure to warn, after which they hope to begin hearings on class certification. Some attorneys with consolidated cases estimate that it could take as long as 18 months to obtain class certification and conduct discovery.

"There's not a direct crossover" between the cookware claims and the groundwater suits, said Stuart Scott of Cleveland, whose state class action has been folded into the Iowa MDL. (Belmonte v. E.I. DuPont De Nemours & Co., No. 05-219 (S.D. Fla. filed June 15, 2005).) "These are two different types of cases. But they deal with the same chemical, so if people are getting diseases if exposed to PFOA in their water, consumers will be interested to know if PFOA is coming off of their cookware."

DuPont argues that Teflon is a different product--a fact question to be explored in the litigation, according to Scott. DuPont "is claiming that PFOA doesn't exist in the end product. That's what we'll find out through discovery--whether it does," he said.

"I do expect that [DuPont] will be in the fight for the long haul," said Baer. "I think this case will turn on the science, and if it shows that the science is right and there are things DuPont should have told customers, then we'll prevail."

Next steps

In January 2005, DuPont and seven other companies that use PFOA in their products agreed to a voluntary pact with the EPA to reduce by 95 percent new PFOA emissions from plants making Teflon by 2010 and to eliminate emissions entirely by 2015.

Despite the advisory board's recommendation to relabel PFOA a likely cancer risk, the EPA doesn't say people need to stop using Teflon products because of health concerns. However, the board noted that EPA risk assessments should include data on PFOA's potential to cause liver, testicular, pancreatic, and breast cancers and its impact on hormones and the nervous and immune systems.

In a March 7, 2006, proposed rule to test new products that use polymers like PFOA, posted in the Federal Register, the agency wrote, "Based on recent information, EPA can no longer conclude that these polymers will not present an unreasonable risk to human health and the environment."

Citing DuPont's failure to disclose possible hazards, other groups are calling for more investigation. In Virginia, the state chapter of the Sierra Club and two unions representing workers at a DuPont plant in Spruance want the EPA and state Department of Environmental Quality to investigate the plant, where Teflon was made until 2004, to determine whether PFOA is still present at the site or in the nearby James River and local groundwater.

"We urge EPA to list [PFOA] as a carcinogen, formally regulate it as a hazardous chemical, and require DuPont to initiate better community and worker health studies, and then immediately and fully disclose the results," said Doris Cellarius, chair of the Sierra Club's water committee, in a statement.

Other organizations--including the C8 Working Group, a coalition of environmental groups in Durham, North Carolina--are asking DuPont to provide information about levels of PFOA in the blood of workers and in the air and water near plants where the chemical is used.

DuPont remains adamant about safety. "Based on an evaluation of human health and toxicology studies, DuPont concludes that PFOA exposure does not pose a cancer risk or any health risk to the general public," says the company Web site. "There is no significant potential for exposure to PFOA from using products made with DuPont materials, hence, there is no risk to consumers."