BOSTON (Legal Newsline) - The largest union of firefighters is suing a standard-setting organization it says conspired with the manufacturer of Gore-Tex fabric and others to require chemicals known as PFAS in safety clothing - a standard the union itself supported for more than a decade and still requires in many of its collective bargaining agreements with municipal governments.
The International Association of Fire Fighters, representing more than 330,000 emergency workers, sued the National Fire Protection Association earlier this year in state court in Massachusetts. The lawsuit accuses NFPA of promulgating a standard, NFPA 1971, that requires PFAS-containing materials in the moisture barriers of so-called “bunker gear,” the water-resistant jackets, pants, boots and gloves firefighters wear on duty.
The IAFF says Lion and Gore, two of the biggest manufacturers of bunker gear, conspired with NFPA to include a needless ultraviolet light test that would “effectively require” the use of PFAS in moisture barriers. When the IAFF elected a new president who led a campaign to eliminate PFAS from bunker gear in 2021, the union says, Lion and Gore pressured NFPA to uphold the UV test requirement. Neither company is named as a defendant in the suit.
The union is represented by Motley Rice and Simmons Hanly Conroy, firms that are active in other litigation over PFAS. The claim in this case, if successful, would represent a 180-degree turn from one of the greatest successes these same lawyers achieved in federal multidistrict litigation against 3M and other PFAS manufacturers.
In the MDL, lawyers convinced a judge to reject the government contractor defense, in which the companies argued they included PFAS in firefighting foam because it was the only way to meet government specifications.
The ruling by U.S. District Judge Richard Gergel in South Carolina paved the way for 3M’s $12.5 billion plan to settle PFAS lawsuits, which will reward Motley Rice and other plaintiff firms more than $1 billion in fees.
The union’s lawsuit argues the exact opposite, that NFPA and its co-conspirators ensured an “unnecessarily, illogical, unreasonable and arbitrary UV light degradation standard” was inserted into NFPA 1971 to make it impossible to meet without PFAS chemicals.
The union is seeking compensation for the money it spent researching PFAS risks and an injunction preventing NFPA from “maintaining or enforcing” the UV standard. It also wants treble damages and attorney fees. NFPA reported $323 million in assets and $82 million in revenue in 2022, with revenue coming from a mix of publication sales, meetings, membership dues and investment income.
The NFPA has moved to dismiss the case, saying the union has failed to state a claim. First, the NFPA says it has no power to enforce its standards, which are written by a technical committee consisting of industry and union representatives and adopted voluntarily by manufacturers and unions. The UV test was adopted in 2007 on a 30-1 vote of that committee and was supported by the union until a change of leadership in 2021, the NFPA said.
In the three years before its change of heart, the union accepted more than $400,000 in sponsorship payments from manufacturers including Gore.
“Thus, under its own conspiracy theory, the union would have necessarily been a participant in the alleged conspiracy, if there were one, from the development of the standard in 2007 through January 2021 when it opted to seek a change,” the NFPA said.
Courts have repeatedly rejected similar suits against standard-setting organizations for swimming pools, furniture, construction materials and cosmetic talc. In a similar case, the Fifth Circuit Court of Appeals recently dismissed a lawsuit accusing the Infectious Disease Society of America of conspiring with insurers to criticize certain treatments for Lyme disease, saying the IDSA’s recommendations were opinions not subject to litigation.
The only alleged wrongful conduct in the firefighters union suit is that that NFPA “promulgated a standard with which the plaintiff now disagrees, changing course after many years in which it did agree,” the organization said in its motion to dismiss.
PFAS are found in firefighting foam and consumer products and have been dubbed "forever chemicals" because of the human body's inability to rid itself of them. Lawyers have jumped on the chance to sue dozens of companies, with some scoring contingency-fee contracts with government officials and others pursuing consumer protection claims.
The federal government is attempting to set a maximum contaminant level for PFAS, even as groups call the move premature. Much of the research regarding their effect on the human body is disputed.