PFAS: All you Need is Outrage?

Posted on February 6, 2020 by Kenneth Gray

To some, it’s outrageous that PFAS (Per- and Polyflouoroalkyl substances) are omnipresent in the environment, in biota, in drinking water, and in a number of past and present products.  All PFAS are highly dangerous some claim (or at least presumptively so), based on data on a limited number of the thousands of compounds. It is therefore outrageous that some of the compounds are likely present in a vast majority of Americans.

Bypassing issues of dose, cause and effect, the conclusion is that all PFAS are dangerous and unwanted.  Throw in the allegations that companies knew of hazards before phasing out manufacturing or use (of some of the chemicals) and you have a perfect storm for outrage. Ban them all! Contrary views?  The activists’ answer is that the experts have been bought off or are misleading, so public policy should be based on public opinion, right? And what politician in his or her right mind would ignore public outrage?

The fear of many, and the public in general, is undeniable. The presence of a chemical in the human body, without more information, is information of unknown significance.  For most PFAS, since we don’t have data.  Scientists are struggling currently with whether there is any basis for toxicity grouping or classes of PFAS.  For most PFAS, this is “fear of the unknown,” borne of ignorance, but heightened by uncertainty. 

Public outrage doesn’t have to be, and often isn’t, correlated to actual harm or evidence of likelihood of harm.  The media and press don’t cause outrage, but they can and do amplify it.  Add activists who are media savvy and you get the current PFAS crisis.

Here’s an equation (thanks in part to Dr. Peter Sandman):  Risk = (perceived) Hazard + Outrage.  While experienced environmental law practitioners, toxicologists, and regulators know that Risk = Toxicity X Exposure, that is not the calculus of the public.  To the public, the risk equation is fueled by outrage. To be sure, there are data for some PFAS compounds that justify concerns, but I question whether it justifies the hysteria we see.

Believe it or not, public outrage -- whether justified or not -- is never a substitute for a scientific data, or for risk assessment, or for protective environmental policy.  Lack of data and fear of the unknown don’t inform thoughtful decision making. Yet public fear is undeniable, and legislators and regulators are feeling the heat.

To quote others:  Now is the time for facts, not fear. 

Why not work on better risk communication?  The basic tools include:

  • Understanding and acknowledging the outrage
  • Acknowledging the legitimate concerns
  • Avoiding extremes
  • Sticking rigidly to the facts
  • Recognizing and reminding others that actions or decisions without a scientific and rational basis, or that can’t be implemented do more harm than good in the medium and long run, and likely to be successfully challenged in court
  • Being realistic – there are funding limitations, both public and private
  • Remembering we live in a federal system that has independent actors capable of moving at different speeds
  • If testing is to be required, making sure that we can explain to the public and the regulated community the meaning of the environmental test data produced

While I understand some of the EPA’s 2019 PFAS Listening Sessions helped in some communities, better risk communication must be an ongoing task.

Finally, what’s the role an environmental lawyer can play?  While we are advocates and counselors, the experience we bring must contribute to better decisions.  Not the least of these are the skills and lessons from analyzing environmental problems, making sure that there is credible scientific evidence to justify action, and identifying alternatives that efficiently address health and environmental risks without unnecessary costs or other adverse impacts.

We need thoughtful communication and the best information available as we work through the current PFAS regulatory issues.

New FDA Fish Consumption Advisories: Is the Proof in the Eating?

Posted on July 17, 2014 by Gregory Bibler

            On June 10, FDA issued draft updated advice on fish consumption. 

            The announced purpose of the new advice is to redress a health problem largely attributable to the old advice:  “For years many women have limited or avoided eating fish during pregnancy or feeding fish to their young children,” FDA stated.  Prominently featured in the old advice, which is still in effect, were warnings that methyl mercury may harm an unborn baby or young child’s developing nervous system, and that nearly all fish and shellfish contain traces of methyl mercury.  Women, and their doctors, became so concerned about the potential for trace amounts of methyl mercury in fish to cause harm that they avoided fish entirely.

            Acting on the misperception that all fish and all risk should be avoided caused more harm than good.  “[P]rimary research studies with pregnant women have consistently found that the nutritional value of fish is important during growth and development before birth,” FDA now says, “even though nearly all fish contain at least traces of mercury.”  Rather than trumpeting the dangers of methyl mercury in fish and shellfish, therefore, the new advice affirmatively promotes fish consumption (including shellfish).

            There is no indication in the advice that the data on methyl mercury have changed.  Both the old and new advisory, in fact, target the same four “bad” fish to be avoided:  shark, tilefish, swordfish, and king mackerel.  What has changed is a realization that, absent appropriately worded warnings, the public inevitably will conclude that there is no level of acceptable risk.

            The essential premise of FDA’s new advice, in short, is that it is not possible to eliminate all risk without unacceptable cost.  Implicit in FDA’s justification, in fact, is the realization that warning the public that trace levels of chemicals may cause harm, without making clear either the relative magnitude of the risk or the countervailing benefits that may be sacrificed in eliminating such risk, may itself cause harm.  This is not a new lesson.  Unfortunately, it is an historical lesson that we appear doomed to repeat.