Washington is Latest State to Ban PFAS in Consumer Products

The state of Washington is joining a number of other states that have passed laws and/or adopted regulations restricting the manufacture, sale, or distribution of consumer products containing PFAS. Beginning in May 2019, the Washington state legislature directed the state Department of Ecology to develop regulations restricting the manufacture, sale, and distribution of “priority chemicals” that could be harmful if found in “priority products.”[1] This month, Ecology took the first step in implementing that 2019 law by proposing to restrict PFAS in aftermarket water-repellant sprays, carpets and rugs, and indoor furniture by 2025 and 2026 (the “Safer Products Rule”).[2] The rule would also regulate other “priority chemicals” in fragrances, televisions, recreational mats, and laundry detergent.[3] A future rulemaking—which the legislature directed Ecology to begin by 2025—will regulate water-resistant clothing and gear, apparel, ski wax, car wax, floor sealants, nonstick cookware, personal care products, cosmetics, and firefighter personal protective equipment when they contain PFAS.[4]

Ecology is breaking the Safer Products Rule comment period into two parts. It is accepting comments on a preliminary draft, but only until August 23, 2022—ten days from now.*[5] It will then finalize the rule and publish a final proposed rule in December 2022. The preliminary proposal includes a statewide ban on aftermarket stain- and water-resistant textile treatments that contain intentionally-added PFAS, a ban on carpets and rugs that contain intentionally-added PFAS, and a ban on leather and textile furniture and furnishings intended for indoor use that contain intentionally-added PFAS.[6] The Safer Products Rule would go into effect in 2025 and 2026, and set a critical precedent for how the agency will test for and regulate PFAS in future product categories.

In the absence of federal regulation, states across the nation are imposing their own requirements on manufacturers, retailers, and distributors of a wide variety of products containing PFAS and other chemicals. State regulation in a regulatory void is not new, but having it play out across this many products is extraordinary. There are countless everyday consumer products that contain PFAS, as we have noted before.[7] To date, California, Colorado, Maine, Maryland, New York, and Vermont have proposed or adopted consumer products laws or regulations that ban or require reporting on certain products that contain PFAS and other chemicals.[8]

Washington’s Safer Products Rule is interesting in that it anticipates eventual federal preemption by including a provision that would transition the program’s outright bans into reporting requirements should the federal government enact regulations under the Toxic Substances Control Act (“TSCA”) or another applicable law.[9] How fast or how far EPA will move in regulating PFAS in consumer products is uncertain. In the meantime, PFAS laws in some states will begin to go into effect as early as four months from now.[10]

Washington’s “Safer Products Rule”  

The Safer Products Rule implements the Washington Pollution Prevention for Healthy People and Puget Sound Act of 2019.[11] That law authorized the Washington Department of Ecology to regulate “priority chemicals” in consumer products in four-stages, every five years, as shown in the chart below.[12]

Source: Washington Department of Ecology

In the first stage, Ecology must identify the “priority chemicals” to be regulated in that 5-year action period.[13] The priority chemicals selected first are:

• PFAS,
• Ortho-phthalates,
• Flame retardants,
• Alkylphenol ethoxylates, and
• Bisphenols.[14]

After selecting the priority chemicals to be regulated, the law requires Ecology to identify “priority consumer products” that utilize the targeted chemicals.[15] After that, Ecology must determine whether restrictions on those products are necessary.[16] If so, Ecology must then initiate formal rulemaking to restrict the targeted priority chemicals and products through the imposition of bans or reporting requirements. The proposed Safer Products Rule would implement this final step in the process, and with its completion, the cycle would begin again.

PFAS Restrictions

Under the Safer Products Rule proposal, the manufacture, sale, or distribution of a consumer product in Washington State that contains intentionally added PFAS is banned specifically for:

1. After-market stain and water-resistant treatments;
2. Carpets and rugs; and
3. Leather and textile furniture and furnishings intended for indoor use.

The prohibitions covering the first two product categories are proposed to go into effect on January 1, 2025. The ban on PFAS-containing indoor furniture is proposed go into effect on January 1, 2026. Ecology has carved out statutory exemptions to the ban in the proposed rule, including for motorized vehicles.[17]

The Safer Products Rule also imposes reporting requirements. Manufacturers of leather and textile furniture and furnishings intended for outdoor use must provide annual notice of the use of PFAS in such products to Ecology by January 1, 2024.[18] The reporting party can request that such information be treated as confidential business information if it qualifies as confidential under state law.[19]

The Safer Products Rule applies only to PFAS that is “intentionally added” to consumer products.[20] However, it includes an embedded presumption that the detection of an indicated level of total fluorine is evidence of the intentional addition of PFAS to that product.[21] Product manufacturers may rebut this presumption by submitting a statement to Ecology that provides evidence that the fluorine comes from another source.[22]

Other Priority Chemicals and Products

The proposed Safer Products Rule is not limited to PFAS. It also contains restrictions on manufacture, sale and/or distribution of other priority chemicals and products. By January 1, 2025, the proposal would ban the sale, manufacture, and/or distribution of:

• Fragrances in beauty products and personal care products containing intentionally added Ortho-phthalates;
• Vinyl flooring containing more than 1,000 ppm of Ortho-phthalates;
• Televisions or electronic displays containing certain levels of organohalogen flame retardants;
• Recreational mats or outdoor recreational products made from polyurethane foam that contain more than 1,000 ppm of certain organohalogen flame retardants;
• Laundry detergent containing more than 1,000 ppm of alkylphenol ethoxylates;
• Drink can linings that contain a bisphenol-based epoxy can liner, excluding TMBPF-based epoxy can liners; and
• Thermal paper that contains more than 200 ppm of any individual bisphenol.

The proposal also creates agency reporting requirements for recreational covered wall padding that contain organohalogen flame retardants and food can linings that contain bisphenol.

What’s Next for PFAS Regulation and How to Prepare

The Safer Products Rule is only one aspect of the potential liability confronting consumer product manufacturers, retailers, and distributors of products that contain PFAS and other “priority chemicals” in Washington State. Washington has become one of the nation’s most aggressive regulators of PFAS, and those regulations create potential liabilities that go well beyond products.

As we have written previously, potential liabilities under state and federal reporting and cleanup laws extend to the current and historic use of PFAS in wastewater treatment systems, drinking watersupply systems, landfills, airports, refineries, and fire departments, and to landowners, developers, and a host of other Washington businesses. Washington regulates all PFAS compounds as “hazardous substances” under the state’s superfund programs and has begun to require routine testing for PFAS at wastewater treatment and at cleanup sites. Last month, the Washington Department of Ecology released soil and groundwater cleanup levels for PFOA, PFOS, PFNSA, PFHxS, PFBS, and HFPO-DA, also known as GenX.[23] Washington joins the many other states that have already established binding statewide cleanup levels for PFAS in groundwater or soil, including Alaska, Massachusetts, Michigan, New Hampshire, and New Jersey.[24]

This article was written by Keelin Kelly, James Pollack, and Brad Marten. To learn more about PFAS, contact any member of our PFAS team, including Jess Ferrell, Jeff Kray, James Pollack, Sara Cloon, Jack Ross, Jack Lyman, and Brad Marten.

*On August 16, the Department of Ecology extended the comment deadline to August 31, 2022. 

[1] Substitute Senate Bill 5135, Wash. Laws of 2019, ch. 292 (July 28, 2019); Chapter 70A.350 RCW.  Seehttps://ecology.wa.gov/Waste-Toxics/Reducing-toxic-chemicals/Safer-products.

[2]https://www.ezview.wa.gov/Portals/_1962/Documents/saferproducts/PreliminaryDraftRuleLanguage_Cycle1_August2022.pdf?utm_medium=email&utm_source=govdelivery

[3]Id.

[4]https://app.leg.wa.gov/billsummary?BillNumber=1694&Year=2021

[5] Parties interested in learning more may wish to contact James Pollack.

[6]https://www.ezview.wa.gov/Portals/_1962/Documents/saferproducts/PreliminaryDraftRuleLanguage_Cycle1_August2022.pdf?utm_medium=email&utm_source=govdelivery

[7]https://www.martenlaw.com/news...

[8] Maine has adopted a ban on all products that contain intentionally added PFAS beginning January 2030, and for rugs, carpets, and after-market textile treatments containing PFAS beginning January 1, 2023. The state is also developing a reporting program that will require reporting on all products that contain PFAS beginning January 1, 2023. Colorado has adopted a ban on fabric treatments, carpets or rugs, food packaging, and carpets or rugs that contain PFAS in 2024, cosmetics and indoor upholstered furniture containing PFAS in 2025, and outdoor furnishings containing PFAS in 2027. Maryland and Vermont have adopted bans on intentionally added PFAS in carpets and rugs that starts July 1, 2023. New York and California are both developing legislative bans on apparel containing PFAS.

[9]https://www.ezview.wa.gov/Portals/_1962/Documents/saferproducts/PreliminaryDraftRuleLanguage_Cycle1_August2022.pdf?utm_medium=email&utm_source=govdelivery

[10] 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.

[11] Substitute Senate Bill 5135, Wash. Laws of 2019, ch. 292 (July 28, 2019); Chapter 70A.350 RCW.  Seehttps://ecology.wa.gov/Waste-Toxics/Reducing-toxic-chemicals/Safer-products.

[12] RCW 70A.350.040.

[13] RCW 70A.350.020.

[14] RCW 70A.350.010(12).

[15] RCW 70A.350.030.

[16] RCW 70A.350.040.

[17] Exemptions are defined in Chapter 70A.350 RCW: and include: Plastic shipping pallets manufactured prior to 2012; Food or beverages; Tobacco products; Drug or biological products regulated by the United States food and drug administration; Finished products certified or regulated by the federal aviation administration or the department of defense, or both, when used in a manner that was certified or regulated by such agencies, including parts, materials, and processes when used to manufacture or maintain such regulated or certified finished products; Motorized vehicles, including on and off-highway vehicles, such as all-terrain vehicles, motorcycles, side-by-side vehicles, farm equipment, and personal assistive mobility devices; and Chemical products used to produce an agricultural commodity, as defined in RCW 17.21.020.

[18]https://www.ezview.wa.gov/Portals/_1962/Documents/saferproducts/PreliminaryDraftRuleLanguage_Cycle1_August2022.pdf?utm_medium=email&utm_source=govdelivery

[19]See id. (citing RCW 43.21A.160)

[20]Id.

[21]Id.

[22]Id.

[23]https://apps.ecology.wa.gov/pu...

[24] 18 AAC 75.345; 310 Code of Mass. Regs. § 40.0993(5)(f); Mich. Admin. Code R. 325.10604g; New Hampshire House Bill 1264 (2020); N.J.A.C. 7:10.