Minnesota and Washington Blitz PFAS in Products; Maine Backpedals

In a pair of new initiatives, Minnesota and Washington are implementing sweeping restrictions on the use of PFAS in consumer products. Meanwhile, Maine—a first mover in regulating PFAS in products[1]—has recently amended its PFAS reporting regime to push the deadline back to 2025 and loosen reporting requirements. With these actions, the patchwork of laws governing consumer products containing PFAS has only become more complicated.

Maine

It’s no secret that the Maine Department of Environmental Protection’s rollout of the state’s breathtakingly broad PFAS reporting law has been beset with problems and difficulties.[2] The law as implemented requires reporting of information on any consumer product containing intentionally added PFAS as well as the amount of each specific PFAS chemical, starting January 1, 2023.[3] Despite that statutory deadline, the agency was still finalizing regulations to implement the reporting requirement, with an estimated completion date toward the end of the year.

On June 8, the state backpedaled. The governor of Maine signed into law an amendment of the Maine PFAS reporting law, containing several critical changes:

• Start date pushed back: The reporting deadline was pushed back to January 1, 2025.
• Reporting requirement loosened: What needs to be reported for each product containing intentionally added PFAS has changed.
• The product description must state the total units sold annually in Maine or nationally.
• Reporting of PFAS may now be done in terms of total organic fluorine, “if the amount of each PFAS compound is not known.”
• Reporting can be based on supplier-provided information rather than testing.
• Small business exemption: Manufacturers employing 25 or fewer people are now exempt from the reporting obligation.
  

A bill to further limit the reporting rule by narrowing the definition of PFAS to exclude degradation byproducts, PFAS with just one fully fluorinated carbon atom, and polymers like PTFE, died in committee in May.[4]

Minnesota

The governor of Minnesota signed HF 2310 into law on May 24, 2023. This bill adopted many of Maine’s original reporting provisions and combined those requirements with bans of PFAS in certain product categories. With Maine’s law delayed and narrowed, Minnesota’s new law may take the mantle as one of the broadest, if not the broadest, PFAS laws in the country:

• Starting January 1, 2025, Minnesota will ban the sale, offer for sale, or distribution for sale in the state any of the following products containing intentionally added PFAS:
  • carpets or rugs
  • cleaning products
  • cookware
  • cosmetics
  • dental floss
  • fabric treatments
  • juvenile products (defined as products designed or marketed for use by children under the age of 12)
  • menstruation products
  • textile furnishings
  • ski wax
  • upholstered furniture
  • any other category the Commissioner of the Minnesota Pollution Control Agency designates by rule
• Starting January 1, 2026, any manufacturer of a product containing intentionally added PFAS must report the product, the amount of each PFAS in the product, the purpose of the PFAS in the product, and information about the manufacturer.
  • Sale or distribution of the product is prohibited unless this reporting has occurred.
  • This is similar to Maine’s reporting law before the above-described amendments.
• Starting January 1, 2032, no products containing intentionally added PFAS may be sold, offered for sale, or distributed for sale in Minnesota, absent an exemption provided by the Minnesota Pollution Control Agency.
• Certain categories of products are completely exempt from the above provisions: products controlled wholly by federal law, firefighting foams and food packaging that are regulated by other Minnesota state laws, and used products.

Given that the effective dates of the provisions of this law are over a year in the future, there is time for businesses to comply. But this new Minnesota law undoubtedly contains one of the broadest PFAS restrictions in the country.

Washington

In the Washington Pollution Prevention for Healthy People and Puget Sound Act of 2019, the Washington state legislature directed the Washington Department of Ecology (“Ecology”) to develop regulations restricting the manufacture, sale, and distribution of “priority chemicals,” including PFAS,[5] that could be harmful if found in “priority products.”[6] In 2022, Ecology followed up by issuing the Safer Products Rule.[7] Essentially, Ecology has committed to designating, in a five-year cycle, various classes of products containing priority chemicals like PFAS for restrictions or reporting requirements.

The latest cycle of the Safer Products Rule is coming to a close. Ecology is prohibiting the manufacture, sale, and distribution of products in any of the following categories that contain intentionally added PFAS:[8]

• Aftermarket stain- and water-resistance treatments—starting 2025
• Carpets and rugs—starting 2025
• Indoor leather and textile furnishings—starting 2026

There are sell-through provisions for each of these product categories, allowing continued sales and distribution in Washington of products that were manufactured before the effective date of the ban.

The new rule also establishes a reporting requirement for outdoor leather and textile furnishings, though it otherwise does not restrict the use of PFAS in such furnishings.[9] Starting in 2024, manufacturers will need to submit information to Ecology on outdoor leather and textile furnishings containing intentionally added PFAS about the PFAS contents, the function of PFAS in the product, and the concentration of PFAS within a prescribed set of ranges.[10]

Notably, Ecology presumes that PFAS has been intentionally added to a product if total fluorine testing is positive.[11] The manufacturer has the responsibility of rebutting that presumption by filing an affidavit and providing credible evidence that the PFAS was not intentionally added.

Conclusion

May and June have brought a host of changes to the PFAS regulatory environment in Minnesota, Maine, and Washington. Please contact Marten’s Products Team, including James Pollack, Victor Xu, and Jessica Ferrell, for assistance in navigating PFAS laws, green marketing issues, and other environmental compliance matters related to your products.

[1] James B. Pollack, Regulation of PFAS in Consumer Products, Marten Law (Apr. 7, 2022), https://www.martenlaw.com/news....

[2] Marina Schauffler, Maine’s law to reduce PFAS in products is off to a slow start, The Maine Monitor (Nov. 27, 2022), https://themainemonitor.org/ma...; Penelope Overton, Lawmakers move to delay start of first-in-the-nation PFAS law, Portland Press Herald (May 11, 2023), https://www.pressherald.com/20....

[3] 38 M.R.S. § 1614.

[4]https://legislature.maine.gov/...

[5] RCW 70A.350.010(12)(a).

[6] Chapter 70A.350 RCW.

[7] James Pollack, Washington is Latest State to Ban PFAS in Consumer Products, Marten Law (Aug. 12, 2022), https://www.martenlaw.com/news....

[8] WAC 173-337-110.

[9] WAC 173-337-110(4).

[10] WAC 173-337-060.

[11] WAC 173-337-110.