PFAS chemicals and the education sector

Perfluoroalkyl and polyfluoroalkyl substances refer to a group of manufactured chemicals that are widely used in industrial settings and everyday products, commonly known as “PFAS”. Health and environmental concerns regarding the widespread use of PFAS chemicals have mounted recently, resulting in increasing regulatory scrutiny and a growing tide of litigation brought by both consumers and regulators. Participants in the education sector should be conscious of the health risks presented by these chemicals and consider how growing regulatory scrutiny may impact the sector in coming years.

What is PFAS?

PFAS refers to a group of chemicals which are used in a range of industrial processes, including automative and aviation manufacturing, defence and aerospace activities and construction materials. They are also used in the production of household items like cosmetics, cleaning products, food packaging and processing, and cookware such as non-stick pans.

There is a growing list of disease categories with ‘probable links’ to PFAS. These include testicular and kidney cancer, high cholesterol, ulcerative colitis, obesity and thyroid disease. Others include fertility issues, pregnancy-induced hypertension, and birth defects.

The impact of PFAS chemicals is magnified by the inability of the chemicals to naturally break down in the environment – hence the colloquialism ‘forever chemicals’. Long after these products have disintegrated in landfill, PFAS remains in surrounding air, water, sediments, plants, and wildlife.

Regulation and litigation in the UK

The regulatory regime pertaining to PFAS chemicals in the UK includes a range of legislation and is overseen by several regulatory agencies. By way of summary, it is noted that:

1. The regulatory regime which governs chemicals manufactured or imported into the UK is Assimilated Regulation (EC) No 1907/2006, or UK Registration, Evaluation, Authorisation and Restriction of Chemicals (“UK REACH”). The majority of PFAS are industrial and consumer chemicals and are therefore regulated under this regime. On 4 April 2023, 36 individual PFAS were registered under UK REACH. The Health and Safety Executive (“HSE”), as the agency for UK REACH, anticipates that another 40 will be registered in the future.
2. Through domestic regulation, the UK has implemented several international conventions – including the Stockholm Convention and Aarhus Protocol – designed to restrict the production and manufacture of certain PFAS chemicals known as persistent organic chemicals. These conventions are implemented domestically through the retained EU Persistent Organic Pollutants Regulations 2007 (“POP Regulations”). Under the POP Regulations, it is a strict liability offence for a person to produce, place on the market, or use a designated POP in contravention of the manufacture, sale and use prohibition. Both corporates and responsible individuals such as directors can be liable under these regulations.
3. Beyond these regimes, there are numerous other statutes which may operate to further restrict the production and use of PFAS in the UK. These include regulations pertaining to hazardous substance classifications, chemicals in food and food contact materials, environmental permits, contaminated land, and water quality.
4. PFAS oversight has been identified in several contexts as a key priority for increased regulatory intervention. For example, PFAS was identified as a key priority for UK REACH in 2023/24 and there is an intention for several PFAS-related regulatory priorities to be actioned under the new government.

There has also been a significant wave of litigation brought by regulators and consumers in overseas jurisdictions in relation to PFAS, especially in the United States. Large class actions have been brought against a range of entities across the supply chain, especially government departments and large chemical producers. In the UK there have not been any PFAS-related claims filed to date. However, the commencement of UK group class action litigation, regulatory proceedings or both appears imminent.

The education sector

Participants in the education sector should be conscious of several specific applications of PFAS chemicals which may impact the industry.

Significant levels of PFAS chemicals have been detected in artificial turf grass commonly used in school playgrounds. The precise impact of the use of these chemicals in artificial turf remains unclear. However, recent studies have indicated that users of artificial grass fields were exposed to higher PFAS levels than users of ‘real grass’ fields, causing significant concerns for the health risk potentially posed by artificial turf.

Likewise, PFAS chemicals have been detected in stain-resistant textiles commonly used for school uniforms. Studies conducted in respect of textiles purchased in the United States and Canada have shown that PFAS chemicals were found in school uniforms made from 100% cotton, cotton spandex, and cotton polyester. These are all materials which are commonly used in school uniforms in the UK. PFAS can be absorbed through the skin and inhaled when it breaks off from clothing, meaning that school uniforms may cause heightened PFAS levels within children who wear school uniforms containing the types of materials referred to above, among others. Moreover, children have been found to be particularly vulnerable to PFAS – a fact which inherently increases the risk posed to educational providers.

The presence of PFAS chemicals in artificial turf and school uniforms represents just two examples of how PFAS risk may present unique risks to participants in the education sector. Due to the ubiquitous use of PFAS chemicals in industrial processes, the potential risks presented by PFAS chemicals to participants in the education sector extend well beyond these two examples.

Next steps for the education sector

The regulatory landscape relating to PFAS chemicals is changing rapidly. Although no immediate action may be required, educational providers should be conscious of this changing landscape and how it may impact their operations.

Given the increasing appetite for scrutiny of the use of PFAS chemicals, educational providers should assess their potential exposure to PFAS and keep apprised of developments in both related litigation to the extent litigation is commenced in the UK, as expected, and changing regulatory oversight. We would also suggest that educational providers consider the extent to which their current insurance policies may respond to PFAS-related risks.