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Regulation Of PFAS In Consumer Products – Chemicals


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.1 But PFAS are also used in a wide variety of
consumer products.2 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

Maine will be the first jurisdiction to mandate the consumer
product manufacturers report the presence of any PFAS in any of
their products
.3 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.4
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.5
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.

California

As of April 1, 2022 California regulations that
cover textile treatments containing any PFAS for use in clothing
and shoes are in effect.6 Chemical manufacturers that
produce textile treatments must submit a Priority Product
Notification (“PPN”) to identify any treatments that
contain PFAS by May 31, 2022.7 The PPN
must name all treatment products that contain PFAS and are sold in
California.8 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.9 The California
Department of Toxic Substances Control will contact the product
manufacturer or retailer to make them aware of the reporting
obligation.10 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.11 Product manufacturers and retailers may enter
into agent arrangements that transfer the responsibility to place
and maintain labels from manufacturer to retailer.12
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:
PFOA13 and PFOS14 on November 10, 2017 for
reproductive toxicity and February 25, 2022, for cancer; and
PFNA15 on December 31, 2021 for reproductive toxicity.
16 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.

Other States

  • 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.17

  • 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.18

  • 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.19

  • New Hampshire requires bottled water manufacturers to report
    PFAS levels in water when applying for or renewing beverage
    licenses.20

Federal Requirements

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.21 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.22 That list features
several of the more common forms of PFAS, including PFOA, PFOS, and
GenX.23 The list also includes many so-called
“short-chain” or six-carbon-atom PFAS like
PFHxS,24 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.25 That exception has
been challenged in federal court.26 EPA has separately
announced that it will begin the process to end application of the
de minimis exception to PFAS this year.27 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

Maine

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, 2030.28 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.”29

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.”30 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.”31 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.

Other States

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,
2023.32 California has also banned the sale of cosmetics
with added PFAS beginning January 1, 2025.33 New York
has implemented a similar ban on PFAS added to food packaging
beginning January 1, 2023.34 Many states have already
banned or limited the use of PFAS in firefighting foam-one of the
primary sources of PFAS contamination in
groundwater.35

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. 36 The Maryland legislature
passed a ban on cosmetics with added PFAS that is currently
awaiting the Governor’s signature.37 The Minnesota
legislature is debating bills to ban PFAS-containing ski wax,
cosmetics, and cookware.38 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.39
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,40 but none have been enacted to date. States
remain the primary regulators in this space.

Conclusion

As the federal government and states implement PFAS regulations,
the demands on manufacturers and retailers of consumer products
containing PFAS will continue to grow.

Footnotes

1. 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.

2. See id.

3. 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.

4. 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.

5. Maine DEP, Safer Chemicals in
Children’s Products
,
https://www.maine.gov/dep/safechem/childrens-products/index.html.

6. 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/.

7. Id.

8. See id.

9. Id.

10. 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/.

11. 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.

12. 27 CCR § 25600.2.

13. Perfluorooctanoic acid (PFOA) is a
synthetic chemical used to make fluoropolymers. See
https://tdb.epa.gov/tdb/contaminant?id=10520.

14. Perfluorooctane sulfonate anion
(PFOS) is a synthetic perfluorinated compound (PFC). See
https://tdb.epa.gov/tdb/contam…;

15. Perfluorononanoic acid (PFNA). See https://tdb.epa.gov/tdb/contam… for a
glossary of PFAS names.

16. California Department of Toxic
Substances Control, Chemicals Considered or Listed Under
Proposition 65
,
https://oehha.ca.gov/proposition-65/chemicals.

17. https://www.nysenate.gov/legis…

18. Vermont Department of Health,
Chemicals of High Concern to Children, https://www.healthvermont.gov/…

19. OAR 333-016-2001 – 333-016-3010.

20. 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.

21. 42 U.S.C. § 11001, et seq.

22. 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.

23. 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.

24. See id.

25. 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).

26. Nat’l PFAS Contamination
Coal. v. E.P.A.
, No. 1:22-cv-00132-JDB (D.D.C., Compl. filed
Jan. 20, 2022).

27. 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.

28. 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.

29. Id.

30. Id.

31. Id.

32. AB-652, Product safety: juvenile
products: chemicals: perfluoroalkyl and polyfluoroalkyl substances,
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB652.

33. AB-2762, Cosmetic products: safety,
https://leginfo.legislature.ca…;

34. https://www.nysenate.gov/legis…

35. For example: Arizona, Colorado,
Connecticut, Delaware, Georgia, Illinois, Indiana, Kentucky, Maine,
Minnesota, Nevada, New Hampshire, New York.

36. Wash. Rev. Code § 70A.350
(2019).

37. https://mgaleg.maryland.gov/mg…

38. https://www.revisor.mn.gov/bil… ; https://subscriber.politicopro…

39. 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.

40. See, e.g., H.R.3990, No PFAS
in Cosmetics Act (introduced June 17, 2021).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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