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This article originally featured in Insurance Day, October 2024. It was written by litigation assistant Lydia McLatchie, partner Nathalie Smyth and legal director Emilie Civatte.
Litigation involving microplastics is gaining traction in the US, where several putative class action complaints have been filed. These actions echo ongoing legal disputes over PFAS where companies are facing substantial liabilities for failing to manage the alleged environmental and health impacts of their products.
Escalating concerns in relation to the liability risks arising from the environmental and health impacts of substances such as per- and polyfluoroalkyl substances (PFAS) have drawn attention to the potential risks posed by other persistent and non-biodegradable contaminants, such as microplastics.
Microplastics are miniscule, plastic particles less than 5mm in diameter in size, formed through the degradation and wear of larger pieces of plastic and fibres through many years. Owing to their abrasive and thickening properties, they are also artificially produced for commercial use in a wide range of consumer and industrial products, from personal care, clothes and cosmetics, to detergents and artificial turf.
The European Chemicals Agency (ECHA) says 42,000 tonnes of microplastics enter the environment annually when products containing them are used. Microplastics have been detected in food, drinking water, and even human blood and tissue, and concerns have naturally been raised about their impact on human health and food safety, as well as the environment.
Despite years of scientific research on microplastic contamination, the risks these tiny particles pose are not yet entirely understood or quantifiable, particularly owing to a lack of adequate analytical methodology. The US Food and Drug Administration (FDA) reported in July 2024 that existing scientific evidence does not demonstrate that levels of microplastics (or even smaller plastic particles known as nanoplastics) detected in food pose a human health risk.
Nevertheless, as scientific research progresses, the implications of microplastic contamination remain under regulatory scrutiny globally. Scientific and regulatory developments should be closely monitored by businesses and their insurers in the coming years because of the potential liability exposures under product laws and environmental regulations.
UK and EU regulators
Regulators in the UK and EU are also actively investigating the risks associated with microplastics.
The ECHA proposed restrictions on intentionally added microplastics in products, and these were adopted by the European Commission in September 2023. The restrictions, which aim to reduce microplastic pollution by 500,000 tonnes in the next two decades, prohibit the sale of microplastics on their own, as well as products to which microplastics have been intentionally added and that release those microplastics when used.
There are also certain derogations, including in relation to microplastics used at industrial sites, and their use in some medicinal products and some food additives. The EU Commission is also considering options for reducing the unintentional release of microplastics into the aquatic environment as part of its Plastics Strategy.
While the UK is yet to impose any restrictions on intentionally added microplastics, the previous government was reviewing policies to limit microplastics in consumer goods. The UK’s Department for Environment, Food & Rural Affairs has also identified “intentionally added microplastics” as a priority for its recent UK REACH work programme. It has also proposed an evidence project to review the emissions of intentionally added microplastics, and the risks they pose to human health and the environment.
Class actions
Litigation involving microplastics is gaining traction in the US, where several putative class action complaints have been filed against manufacturers of bottled water and baby bottle manufacturers based on various allegations including failure to warn, false or misleading labelling, product defects and breaches of consumer protection laws.
These actions echo ongoing legal disputes over PFAS where companies are facing substantial liabilities for failing to manage the alleged environmental and health impacts of their products. Microplastics are now being discussed in the same context as these allegedly hazardous substances, with similar concerns about bioaccumulation, environmental persistence, and unknown health effects. Insurers handling PFAS claims could encounter similar challenges with microplastics, including issues related to long-tail liabilities and complex causation arguments.
Regulatory developments, as well as litigation developments in the US, could expose insurers to claims across the casualty lines, particularly across sectors such as food, manufacturing and packaging. Failure to comply with regulatory requirements could expose insureds to significant fines and product recalls, giving rise to claims under product recall policies, as well as exposure to claims under product liability and environmental policies. There may also be potential exposure under employment liability policies where workers have been exposed to microplastics during the course of their employment.
As microplastics have been added to products for several decades, insurers may need to reassess coverage under historical policies, particularly those providing cover for general liability, product liability and environmental risks, and the extent to which they may respond to potential legacy claims. They may also wish to consider refining policy wordings, including the application of relevant exclusions.
As scientific research continues, insurers should also engage with insureds to ensure they are aware of the potential liability exposures and compliance with relevant regulatory requirements. Insureds should also ensure that products containing intentionally added microplastics are adequately labelled to inform consumers of any potential risks. With greenwashing disputes on the rise, insureds should also ensure they do not overstate or make misleading statements about the biodegradability of their products.
Insurance and reinsurance