PFAS and the risk of greenwashing in the UK

These risks have, to date, largely been in relation to potential environmental contamination and product composition.  However, one potentially overlooked area is whether the environmental claims – 'green claims' – made by businesses in respect of products which contain PFAS comply with the UK's greenwashing regime. 

What are PFAS?

PFAS are a class of thousands of synthetic chemicals that have a wide range of industrial, professional and consumer uses.  PFAS have a number of desirable properties, including being stable under intense heat and having oil resistance, water resistance and low chemical reactivity.   There are also limited alternatives to PFAS for many applications.  However, a majority of PFAS are persistent – meaning they do not break down – in the environment.  Some PFAS have also been linked to a range of health problems, including cancer.

What is greenwashing?

'Greenwashing' is where a business engages in misleading commercial behaviour which creates an impression that its products or services are more environmentally friendly than they really are.  This is done through the making of 'green claims' i.e., claims that suggest that a product, service, brand or business provides a benefit, or is less harmful to, the environment. 

An example of a misleading green claim would be a statement that a product is environmentally friendly because it does not release harmful chemicals into the environment when disposed of, when, in reality, this is only true when the product is disposed of under very specific conditions which are unlikely to be met.

How does this relate to PFAS?

Greenwashing is a stated priority enforcement area for the UK's consumer law regulator, the Competition and Markets Authority (CMA).  Under beefed-up enforcement powers granted to it by the Digital Markets, Competition and Consumers Act 2024 (the DMCCA), the CMA can, amongst other things, fine businesses up to 10% of their global turnover.  With these new powers, which apply to conduct taking place on or after 6 April 2025, the CMA should be expected to start taking a stronger line against misleading claims. 

To date, the CMA has focused its attention on sectors such as fast-moving consumer goods and fashion, but given the increasing profile of the risks associated with PFAS, the substances' widespread use in consumer goods and developments in other jurisdictions, PFAS are clearly at a significant risk of coming under scrutiny in a greenwashing context.

An example of a potentially misleading environmental claim could be one that states that a product "does not contain any harmful substances" when, due to the presence of a PFAS-containing non-stick or waterproof coating, the entity making the statement knows, or should know given the current state of knowledge about PFAS, that the product contains PFAS.  If such a statement were ever challenged, the business would need to be able to demonstrate, via credible evidence, that the statement was true.  An explicit statement that a product is "PFAS free" – a clear green claim – would also need to be capable of substantiation.

While we are not aware of action being taken in the UK in relation to PFAS under greenwashing rules, developments in other jurisdictions indicate that it is very much a real possibility.  In the US for example, a leader when it comes to various types of PFAS-related litigation, cases are already being brought against manufacturers, retailers and other supply chain actors under consumer laws analogous to the UK's greenwashing regime.  Claimants have asserted that products have been sold on the basis of false representations (i.e., that they are 'free from harmful chemicals') or omissions (i.e., that the presence of PFAS should have been disclosed). 

What do businesses need to do?

Businesses not only need to take into account the rules around greenwashing when they make explicit environmental claims, they also need to ensure that implicit environmental claims (such as those made through branding, imagery, or trademarks) are compliant. 

The Green Claims Code, while not in itself legally binding, sets out the CMA’s view of the law relating to unfair commercial practices as it applies to green claims and is intended to help businesses both understand and comply with their legal obligations. 

The Green Claims Code sits alongside two advertising codes administered by the UK Advertising Standards Authority, the CAP Code and BCAP Code (for non-broadcast and broadcast advertising respectively), but these are intended to be consistent with the Green Claims Code.  The ASA has specific advice on environmental claims.

For business-to-consumer claims, businesses should consider both whether they are complying with the Green Claims Code and whether they can answer 'yes' to each of the statements in the UK CMA's Green Claims Checklist.  While each statement in the Checklist needs to be considered in its own right, several are clearly likely to be more relevant in relation to PFAS, including that:

1. claims do not miss out or hide information about the environmental impact that people need to make informed choices;
2. claims are up-to-date and can be substantiated by credible evidence (ideally independently sourced) to show that they are true; and
3. claims either relate to the whole lifecycle of a service or relate to one part of a service without misleading people about the other parts or the overall impact on the environment;

Businesses should also ensure that they stay informed of developments in this area, including any regulatory divergence between jurisdictions.  It is worth noting in that regard that the DMCCA empowers the CMA to provide investigative assistance to overseas regulators on infringements of their consumer protection laws. 

If you would like to discuss any of the issues covered in this article, please contact Aonghus Heatley, a senior environmental and products lawyer in Fieldfisher's London office. Aonghus regularly advises businesses on new and developing legal risks, including greenwashing and PFAS.  Aonghus is the author of a popular UK and EU regulatory overview of PFAS,