PFAS and the government contractor defense: global lessons from the U.S. experience

• Pages: 10201-10212
• Date: 01 May 2026
• Published date: 01 May 2026
• Author: Allan Kanner,Shruti Gautam,David Ivy-Taylor,Max Kanner
• Subject Matter: Derecho del Medio Ambiente

MAY/JUNE 2026 ENVIRONMENTAL LAW REPORTER 56 ELR 10201

PFAS AND THE GOVERNMENT

CONTRACTOR DEFENSE:

GLOBAL LESSONS FROM

THE U.S. EXPERIENCE

by Allan Kanner, Shruti Gautam, David Ivy-Taylor, and Max Kanner

Allan Kanner is the founding member of Kanner & Whiteley in New Orleans. Shruti Gautam and David

Ivy-Taylor are also with Kanner & Whiteley. Max Kanner is a graduate of the University of Pennsylvania.

Per- and polyuoroalkyl substances (PFAS), or “for-

ever chemicals,” present a nearly unprecedented chal-

lenge to global health and the environment.1 is

challenge, in turn, ra ises recurring lega l and scientic

issues for court systems globally. is Comment exam-

ines the issue of whether manufactu rers shared adequate

information regarding the ha zards of PFAS with their

purchasers (and regulators), and delivers insights gained

from decades of PFAS litigation in the United States

and abroad.

As PFAS litigation becomes more common globally,

advocates and courts will want to review related foreign

rulings to advance t he twin goals of justice a nd eciency.

To illustrate this point, the Comment addresses the legal

question of whether government itself is totally or partially

responsible for pollution resulting from PFAS as a pur-

chaser, user, and polluter of aqueous lm-forming foams

(AFFF), which were used for decades in reg hting and

training exercises a nd designed to meet government mili-

tary speci cations.

Specically, we attempt to answer the question of

whether t he government’s role in providing or participatin g

in the development of military or other specications for

an AFFF product excuses or mitigates the manufacturers’

liability for harm. In other words, is the manufacturer

excused from liability because it followed governmentally

mandated or requested product speci cations?

is question arose in a summary judgment motion

before U.S. District Judge Richard Gergel, who is man-

aging the AFFF Multi District Litigation (AFFF MDL),

where the parties introduced a great dea l of evidence on the

1. Allan Kanner, Emerging Trends in Peruorinated Chemical Regulation and

Litigation, ABA E’ E L. N. 447 (2017).

“government contractor defense.”2 In the United States, a

product manufacturer may invoke a government contrac-

tor defense to product liability claims if the product was

made for the federal government consistent with govern-

ment-directed specications. An exception to this ru le

exists when the manufacturer withheld material informa-

tion regarding the haz ard of a product or any of its consti-

tutive parts.3 At summary judgment, the manufacturers’

burden was to show that there was no evidence of the with-

holding of material information, and so no question of fact

for a jury to decide.

As noted by the court, a few issues of fact were uncon-

tested: AFFF products manufactured by the defendants

were initially designed to deal w ith potentially catas trophic

res aboard militar y aircraft car riers, and were subsequently

widely used on military ba ses, airports, a nd in reghter

training programs. Many countries and their militaries

also adopted these or similar speci cations. In their under-

lying claims, the plaintis alleged that the AFFF products

at issue in the litigation contained peruorooctanoic acid

(PFOA) and peruorooctane sulfonate (PFOS), are harm-

ful to human health a nd the environment, and constitute

defects of AFFF. Defendants argued that since their prod-

2. In re Aqueous Film-Forming Foams Prods. Liab. Litig., MDL No.

2:18-mn-2873-RMG (D.S.C.). As noted by Judge Gergel, “On December

7, 2018, the Judicial Panel on Multidistrict Litigation [JPML] created this

MDL to centralize cases alleg[ing] that AFFF products used at airports,

military bases, or certain industrial locations caused the release of PFOA or

PFOS into local groundwater and contaminated drinking water supplies.”

In re Aqueous Film-Forming Foams Prods. Liab. Litig., 357 F. Supp. 3d

1991, 1394 (J.P.M.L. 2018). e MDL court is a special U.S. court that

has discretion to centralize all federal cases that arise from a common ques-

tion of law or fact. Among the common issues identied by the JPML were

defendants’ “government contractor defenses.” [Editor’s Note: Kanner &

Whiteley represents the state of New Mexico and handles common benet

work in this case].

3. e government contractor defense established by In re “Agent Orange”

Product Liability Litigation, 534 F. Supp. 1046 (E.D.N.Y. 1982), holds that

the defense applies if “the government knows as much as or more than the

defendant about the hazards of the product.” By withholding information, a

government contractor fails the three-pronged approach, as the government

no longer has equivalent or superior knowledge. Charles E. Cantú & Randy

W. Young, e Government Contractor Defense: Breaking the Boyle Barrier, 62

A. L. R. 403, 414, 433, 436 (1998).

Authors’ Note: The views expressed in this Comment are

the authors’ and do not reflect the views of any client or

business. Kanner & Whiteley represents or has represented

parties in various cases discussed here, as noted in text and

footnotes below.

Copyright © 2026 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org