Regulation of PFAS in Consumer Products
PFAS, or per- or polyfluoroalkyl substances, are a group of over 9,000 synthetic “forever chemicals” that are used to make coatings that can resist extreme temperatures and repel grease, water, and stains. PFAS are best known for uses in industrial products in the aerospace, oil and gas, mining, and medical device industries.[i] But PFAS are also used in a wide variety of consumer products.[ii] Outdoor apparel and equipment companies use PFAS to manufacture rain jackets, tent flies, water resistant hiking boots, fishing line, and durable climbing ropes. Cosmetics companies use PFAS in emulsifiers, creams, hair conditioners, and weather-resistant makeup. Cookware and bakeware companies use PFAS to create non-stick surfaces.
Consumer product manufacturers and retailers who produce or sell products containing PFAS must grapple with a growing list of reporting and labeling requirements and bans on use of PFAS. This article provides an overview of the considerations a product manufacturer or retailer must make as it navigates the growing list of regulations surrounding PFAS.
PFAS Reporting and Labeling Requirements
The most immediate demands on consumer product manufacturers and retailers relate to reporting and labeling requirements. States have been most active in this space, although the federal government has also introduced reporting requirements. We highlight some of the most significant regulations below.
Maine will be the first jurisdiction to mandate the consumer product manufacturers report the presence of any PFAS in any of their products.[iii] Starting January 1, 2023, consumer product manufacturers must provide written notice to the Maine Department of Environmental Protection (“DEP”) regarding any products that contain any intentionally added PFAS. The notice must include a description of the product, the purpose of using PFAS in the product, the amount of each type of PFAS in the product, as well as manufacturer contact information. Maine DEP may also add additional requirements to those notices. There are two exemptions to Maine’s reporting program: 1) those products for which federal law already regulates PFAS content and preempts state authority (a category that, as described below, does not yet exist); and 2) food packaging containing PFAS, which is dealt with in the separate Maine Toxics in Food Packaging Program.[iv] Maine DEP can prohibit the sale of any product with added PFAS should the manufacturer fail to report the product.
Maine DEP is still in the process of designing how this comprehensive reporting program will operate. However, the state already runs a similar program that could provide some clues: the Safer Chemicals in Children’s Products program.[v] Under that program, manufacturers of children’s products for sale in Maine must disclose if their products contain chemicals of interest listed by Maine DEP. Product manufacturers submit a spreadsheet disclosing categories of products that contain those chemicals. The state does not publicly disclose those reports because the data is not disaggregated by specific product. The Safer Chemicals in Children’s Products program may provide clues on the PFAS products program, but the details are not yet complete. Maine DEP will engage in public notice and comment rulemakings to clarify the scope of the program before the program begins on January 1, 2023. The comment periods will probably last no more than 30 days due to the tight statutory deadlines for implementation.
As of April 1, 2022 California regulations that cover textile treatments containing any PFAS for use in clothing and shoes are in effect.[vi] Chemical manufacturers that produce textile treatments must submit a Priority Product Notification (“PPN”) to identify any treatments that contain PFAS by May 31, 2022.[vii] The PPN must name all treatment products that contain PFAS and are sold in California.[viii] Although many consumer products manufacturers and retailers purchase their textile treatments from chemical manufacturers rather than produce their own textile treatments in-house, consumer products manufacturers and retailers may still have a reporting obligation. If the textile treatment supplier fails to comply with California’s PPN requirement, then that reporting obligation flows downstream to the consumer product manufacturer and retailer.[ix] The California Department of Toxic Substances Control will contact the product manufacturer or retailer to make them aware of the reporting obligation.[x] Downstream consumer product manufacturers and retailers may wish to raise these obligations with their suppliers.
Along with reporting obligations, consumer products manufacturers and retailers must meet labeling obligations for products containing certain PFAS. California’s Safe Drinking Water and Toxic Enforcement Act, also known as Proposition 65, requires product manufacturers, producers, packagers, importers, suppliers, or distributors to place “clear and reasonable” warnings on products that contain chemicals that may cause cancer, birth defects, or other reproductive harms.[xi] Product manufacturers and retailers may enter into agent arrangements that transfer the responsibility to place and maintain labels from manufacturer to retailer.[xii] California publishes a list of chemicals that—when incorporated into a product sold in California—trigger the warning mandate.
California has added three PFAS to the Proposition 65 list: PFOA[xiii] and PFOS[xiv] on November 10, 2017 for reproductive toxicity and February 25, 2022, for cancer; and PFNA[xv] on December 31, 2021 for reproductive toxicity. [xvi] The labeling requirements are triggered one year after the chemical is added to the list. California updates the list regularly as toxicity data arises—it is already considering the addition of PFDA, PFHxS, and PFUnDA to the Proposition 65 list. Proposition 65 penalties can run as high as $2,500 per violation per day if product manufacturers or authorized agent retailers fail to affix a compliant warning label. Proposition 65 contains a private right of action that allows individuals to file suit on behalf of the public. The large California market, broad set of potential enforcers, and high penalties combine to make Proposition 65 a serious component of the PFAS regulatory environment.
- Several other states have also implemented reporting or labeling requirements. They include:
- New York has implemented a reporting requirement for the addition of PFAS in children’s products including apparel.[xvii]
- Vermont added PFOA and PFOS to its list of Chemicals of High Concern to Children, so children’s product manufacturers must comply with state disclosure and reporting requirements under that program if their products include those PFAS.[xviii]
- Oregon requires children’s products manufacturers to report PFOS in children’s products, and to remove the substance from products that are mouthable, children’s cosmetics, or made for or marketed to children under three years old under the state’s Toxic-Free Kids Act.[xix]
- New Hampshire requires bottled water manufacturers to report PFAS levels in water when applying for or renewing beverage licenses.[xx]
The Emergency Planning and Community Right-to-Know Act (“EPCRA”) requires companies to report the storage, use, and release of chemicals listed on the Toxic Release Inventory.[xxi] Disclosure reports are due to EPA annually on July 1. Congress added 175 PFAS to the Inventory in the FY 2020 National Defense Authorization Act.[xxii] That list features several of the more common forms of PFAS, including PFOA, PFOS, and GenX.[xxiii] The list also includes many so-called “short-chain” or six-carbon-atom PFAS like PFHxS,[xxiv] a chemical that product manufacturers frequently use to replace legacy “long-chain” eight-carbon-atom PFAS. EPA has applied a de minimis exception to PFAS substances, functionally exempting most companies from those reporting obligations.[xxv] That exception has been challenged in federal court.[xxvi] EPA has separately announced that it will begin the process to end application of the de minimis exception to PFAS this year.[xxvii] EPA has since sought a stay in that litigation pending the rulemaking process. Whether through lawsuit or rulemaking, companies that use PFAS will soon have an annual reporting obligation to EPA.
Bans on PFAS Use
Although most states have only begun to require disclosures and labelling, some states have gone much further and have enacted or are considering phased-in outright bans on PFAS in products sold in their state. Maine has already enacted a prohibition on the sale of any product containing “intentionally added PFAS” effective January 1, 2030.[xxviii] Maine DEP may also identify categories of goods by regulation that can be banned earlier than that date. In doing so, the agency must prioritize products that “are most likely to cause contamination of the State’s land or water resources.”[xxix]
The law defines intentional addition of PFAS as the addition of PFAS “to provide a specific characteristic, appearance, or quality or to perform a specific function.”[xxx] The law includes an exemption for PFAS use that Maine DEP determines to be “currently unavoidable,” defined as “essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.”[xxxi] Maine DEP will draft implementing regulations for public comment to define these critical terms and exemptions. As discussed above, those regulations may undergo 30 days or less of public comment, and there is no current timetable for proposal. Marten will continue to provide updates on these regulations as they proceed.
Many other states have implemented targeted bans on PFAS in certain consumer product categories. California has banned the sale of children’s products with added PFAS beginning July 1, 2023.[xxxii] California has also banned the sale of cosmetics with added PFAS beginning January 1, 2025.[xxxiii] New York has implemented a similar ban on PFAS added to food packaging beginning January 1, 2023.[xxxiv] Many states have already banned or limited the use of PFAS in firefighting foam—one of the primary sources of PFAS contamination in groundwater.[xxxv]
Dozens of states are considering product-specific bans of PFAS additions. Washington plans to announce regulations on PFAS additions in carpets, rugs, leather, textiles, and stain- and water-resistant treatments. [xxxvi] The Maryland legislature passed a ban on cosmetics with added PFAS that is currently awaiting the Governor’s signature.[xxxvii] The Minnesota legislature is debating bills to ban PFAS-containing ski wax, cosmetics, and cookware.[xxxviii] The scope of bans on particular products seems almost certain to expand in coming years.
Federal Bans on Use
In its PFAS Strategic Roadmap, EPA announced that it would focus its regulatory strategy on upstream and downstream PFAS issues—regulation of the production and importation of PFAS compounds and of PFAS disposal—rather than manufacturing and use. For example, there are significant restrictions on the import of particular PFAS such as PFOA for use in the United States that have functionally phased out the use of those PFAS.[xxxix] However, there is presently no federal restriction on the use of PFAS in consumer products. The above-described state activities seek to fill perceived gaps in the regulatory structure. Members of Congress have introduced bills to ban the use of PFAS in particular products,[xl] but none have been enacted to date. States remain the primary regulators in this space.
As the federal government and states implement PFAS regulations, the demands on manufacturers and retailers of consumer products containing PFAS will continue to grow.
[i] Juliane Gluge, et al., An overview of the uses of per- and polyfluoroalkyl substances (PFAS), 22 Environmental Science Processes & Impacts 2345, 2358–68 (2020), https://pubs.rsc.org/en/content/articlelanding/2020/em/d0em00291g.
[iii] Me. P. L. ch. 477, An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution (July 15, 2021), https://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280080415.
[iv] Title 32, chapter 26-A, Reduction of Toxics in Packaging, https://www.mainelegislature.org/legis/statutes/32/title32ch26-Asec0.html. Maine will study whether there are safe alternatives to PFAS in food packaging and then may restrict use. That study has not yet started. See https://www.maine.gov/dep/safechem/packaging/index.html.
[v] Maine DEP, Safer Chemicals in Children’s Products, https://www.maine.gov/dep/safechem/childrens-products/index.html.
[vi] California Department of Toxic Substances Control, Effective April 1, 2022: Treatments Containing Perfluoroalkyl or Polyfluoroalkyl Substances for Use on Converted Textiles or Leathers, https://dtsc.ca.gov/scp/treatments-with-pfass/.
[x] California Department of Toxic Substances Control, How Do the Priority Products Affect Me?, https://dtsc.ca.gov/scp/how-do-the-priority-products-affect-me/.
[xi] California Department of Toxic Substances Control, About Proposition 65, https://oehha.ca.gov/proposition-65/about-proposition-65#:~:text=Proposition%2065%20requires%20businesses%20to,are%20released%20into%20the%20environment.
[xii] 27 CCR § 25600.2.
[xiii] Perfluorooctanoic acid (PFOA) is a synthetic chemical used to make fluoropolymers. See https://tdb.epa.gov/tdb/contaminant?id=10520.
[xvi] California Department of Toxic Substances Control, Chemicals Considered or Listed Under Proposition 65, https://oehha.ca.gov/proposition-65/chemicals.
[xix] OAR 333-016-2001 – 333-016-3010.
[xx] Rulemaking Nos. He-P 2101.01, He-P 2102.02, He-P 2102.05, and He-P 2107.01 https://www.dhhs.nh.gov/oos/aru/documents/hep2100varip.pdf.
[xxi] 42 U.S.C. § 11001, et seq.
[xxii] EPA, Addition of Certain PFAS to the TRI by the National Defense Authorization Act, https://www.epa.gov/toxics-rel...; see also Jonah Brown, Congress Authorizes PFAS Testing at Military Facilities Throughout US (Jan. 4, 2022), https://www.martenlaw.com/news-and-insights/congress-authorizes-pfas-testing-at-military-facilities-throughout-us.
[xxiii] EPA, List of PFAS Added to the TRI by the NDAA, https://www.epa.gov/toxics-release-inventory-tri-program/list-pfas-added-tri-ndaa.
[xxv] Toxic Chemical Release Reporting, 85 Fed. Reg. 37,354 (June 22, 2020) (to be codified at 40 C.F.R. pt. 372); Implementing Statutory Addition of Certain Per- and Polyfluoroalkyl Substances (PFAS) to the Toxics Release Inventory Beginning With Reporting Year 2021, 86 Fed. Reg. 29,698 (June 3, 2021) (to be codified at 40 C.F.R. pt. 372).
[xxvi]Nat’l PFAS Contamination Coal. v. E.P.A., No. 1:22-cv-00132-JDB (D.D.C., Compl. filed Jan. 20, 2022).
[xxvii] EPA, PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024, https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.
[xxviii] Public Law Chapter 477, An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution (July 15, 2021), https://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280080415.
[xxxii] AB-652, Product safety: juvenile products: chemicals: perfluoroalkyl and polyfluoroalkyl substances, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB652.
[xxxv] For example: Arizona, Colorado, Connecticut, Delaware, Georgia, Illinois, Indiana, Kentucky, Maine, Minnesota, Nevada, New Hampshire, New York.
[xxxvi] Wash. Rev. Code § 70A.350 (2019).
[xxxix] EPA, Fact Sheet: 2010/2015 PFOA Stewardship Program, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/fact-sheet-20102015-pfoa-stewardship-program#:~:text=The%20manufacture%20and%20import%20of,PFOA%20in%20some%20imported%20articles.
[xl]See, e.g., H.R.3990, No PFAS in Cosmetics Act (introduced June 17, 2021).