By way of a refresher, the 2023 PFAS reporting rule, mandated by 2020 defense legislation, requires any entity that manufactured or imported PFAS between 2011 and 2022 to report extensive information under Section 8(a) of the Toxic Substances Control Act (TSCA). Covered entities initially included all manufacturers and importers of products for commercial purposes if those entities knew, or could reasonably ascertain information, that their products contain PFAS in any amount. The rule’s original scope included no threshold for reporting, and included entities engaged in the coincidental manufacture of PFAS as byproducts or impurities.

Those subject to the rule must provide a comprehensive list of information, including company and plant site information, use information (including use by children), information regarding PFAS source, form, quantity, and concentration, byproduct and disposal information, exposure and release data, as well as information about environmental and health effects.

In November 2025, EPA proposed new exemptions and other clarifications to the 2023 Biden-era rule in an effort to minimize compliance costs and duplicative burdens. The newly created exemptions to the recordkeeping and reporting rule aim to relieve burdens for companies and industries that did not purposefully manufacture or import PFAS for commercial purposes, and are as follows: are as follows:

• Imported Articles: PFAS incorporated into articles—such as coated steel products, cookware, or textiles—would be exempt from reporting. EPA concluded that importers typically lack knowledge of PFAS content in these products.
• De Minimis Threshold: PFAS present at concentrations below 0.1% in mixtures or articles would be exempt, reducing the need for detailed analysis of trace PFAS levels.
• Byproducts and Impurities: PFAS unintentionally produced as byproducts, impurities, or non-isolated intermediates with no separate commercial purpose would also be exempt.

The 2011–2022 lookback period remains unchanged, but the changes from the November proposal would shorten the existing six-month submission period to three months. The EPA plans to release the finalized version of the November 2025 revisions later this year. In its press release announcing the delay, the Agency noted that it anticipates the compliance start-date for PFAS reporting to begin sooner than the backstop date of January 2027.

If you have questions about the PFAS reporting rule’s implications for your company’s processes, feel free to reach out to us directly. Also, feel free to learn more about Kelley Drye’s PFAS practice here.

Washington Adopts 50 ppm Fluorine Threshold in New PFAS Rule

Washington regulators have finalized a rule under the Safer Products for Washington program that will eventually ban certain consumer products with “intentionally added” per- and polyfluoroalkyl substances (“PFAS”). The state defines “intentionally added” PFAS as substances that serve a deliberate function or purpose in the final product or its manufacturing process.

Exemptions to “Intentionally Added” PFAS

In announcing the final rule, Washington regulators introduced a novel 50 parts per million (ppm) total fluorine (“TF”) de minimis exemption. Under the rule, products with a detection of TF above 50 ppm would be presumed to contain intentionally added PFAS, and would therefore be subject to the restrictions. Manufacturers will be able to rebut this presumption by submitting a statement to the Washington Department of Ecology that includes evidence of inadvertent inclusion.

The use of TF as a proxy for PFAS presence was criticized by some industrial stakeholders for a variety of reasons, including because it captures any chemical component with a fluorine atom and not just “PFAS.” Nevertheless, the state decided to move forward with this method, citing broader detection capability, instead of testing for total organic fluorine (“TOF”), the method used under California’s PFAS regulations for apparel and other state laws. The TF approach mirrors the EU’s proposed PFAS restrictions, and purports to offer some flexibility for manufacturers to rebut any assumptions made under the regulations. 

Other exemptions in the rule from the definition of “intentionally added” include any PFAS present due the use of recycled materials in a manufacturing process, or from the unintentional usage of things like contaminated process water. However, these exemptions may need to be submitted as a part of a rebuttal if TF levels exceed 50 ppm. 

Scope of the Rule

Starting on January 1, 2026, manufacturers will need to report the intentional use of PFAS in the following categories of products:

• Extreme and extended-use apparel;
• Footwear;
• Recreational and travel gear;
• Automotive waxes;
• Cookware and kitchen supplies;
• Hard surface cleaners;
• Floor wax and polish; and
• Firefighting PPE.

Starting on January 1, 2027, a full sales prohibition on products with intentionally added PFAS will come into force. The products subject to this prohibition include:

• Apparel;
• Accessories;
• Automotive washes; and
• Cleaning products with intentionally added PFAS. Prohibitions on the sale of these goods start January 1, 2027. 

Washington’s new ban does not include a currently unavoidable use (CUU) exemption process. Instead, the state will employ the novel de minimis total fluorine threshold approach, in addition to the other above-discussed exemptions to “intentionally added” PFAS. In the event that a product is identified as containing more than 50 ppm of total fluorine, manufacturers should be prepared to rebut the presumption of “intentionally added” PFAS to Washington regulators. 

New Jersey Implements Product Ban and Cookware Labeling Requirements

Outgoing New Jersey Governor Phil Murphy signed into law SB 1042, which imposes a ban on “intentionally added” PFAS from a variety of consumer products, and requires labeling for consumer-grade cookware containing PFAS. 

The prohibition on the sale of products applies to the following categories: 

• Cosmetics;
• Carpets,
• Fabric treatments,
• Food packaging. 

The cookware labeling requirement applies to any “durable houseware items that are used to prepare, dispense, or store food, foodstuffs, or beverages, that are intended for direct food contact, and that are items to which heat is transferred or which come into direct contact with a heat source, including pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils.” Commercial cookware is exempt from the law. 

The ban and reporting requirements will take effect on January 12, 2028, two years after the effective date of the act. 

The law’s bans and labeling requirements apply to the above-discussed products that include “substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” Unlike recent bills passed in California, Vermont, and New Mexico, SB 1042 does not exempt fluoropolymers from the product bans, a commonly used subset of PFAS found in cookware and medical devices that the industry argues pose fewer risks than other PFAS chemicals, such as PFOA and PFOS. 

Pennsylvania Proposes Ban on PFAS in Consumer Products 

A recently introduced bipartisan bill in the Pennsylvania House aims to ban PFAS from several products that commonly come in close and direct contact with consumers. The bill, if enacted, would prohibit the inclusion of intentionally added PFAS in the manufacturing of cosmetics, dental floss, juvenile products, and menstrual products. The act intends to implement the ban by July 1, 2027, allowing for a compliance period for manufacturers to meet the bill’s requirements. Distributors or retailers of products may be exempted from these restrictions if they receive certificates of compliance with the law from manufacturers. If in violation, companies could face enforcement under the state’s Unfair Trade Practices Act for unfair or deceptive business practices. 

As of January 15, 2026, the bill has been referred to the PA House’s Consumer Protection, Technology & Utilities Committee. 

Part of a Growing Trend

These three rules and proposals represent the continuation of a recent spike in state-level regulatory and legislative activity around consumer products containing PFAS. Whether an outright ban, or labeling or disclosure requirements, companies must remain aware of their state-specific obligations wherever they conduct business. 

If your company believes it may be subject to his bill, or has identified products and processes that may exceed this threshold, please contact us directly at to discuss options for compliance. 

The Organic Chemicals, Plastics, and Synthetic Fibers ("OCPSF") regulation, promulgated under the CWA, applies to wastewater discharges from more than 1,000 chemical facilities producing over 25,000 end products. A small subset of facilities that manufacture or formulate PFAS—known colloquially as “forever chemicals"—are currently regulated under the OCPSF regulation. But the Regulation does not establish effluent limitations or pretreatment standards for any PFAS compounds. Under the Biden Administration, EPA issued an advanced notice of proposed rulemaking ("ANPRM") indicating that this proposed rule may establish new or revised ELGs, pretreatment standards, and new source performance standards applicable to the OCPSF category to address discharges from PFAS manufacturers.

EPA has not updated the OCPSF regulation since 1993 but issued the ANPRM in March 2021 to initiate data collection and analysis to support new rulemaking—one example of the Biden Administration’s focus on PFAS regulation. The ANPRM identified both PFAS manufacturers and PFAS formulators as potential targets for regulation. While PFAS manufacturers are facilities that produce PFAS compounds or precursors, PFAS formulators are facilities that are the primary customers of PFAS manufacturers and that use raw PFAS feedstock to produce (1) commercial or consumer goods or (2) intermediary products for use in the manufacture of commercial goods. 

In the ANPRM, EPA stated that it had identified PFAS manufacturers and formulators for potential regulation by conducting the PFAS Multi-Industry Study. As part of the Study, EPA identified PFAS manufacturers and formulators, obtained their PFAS data, and evaluated whether their permits contained effluent limitations or monitoring requirements for PFAS compounds. Plus, EPA met with stakeholders including the FluoroCouncil of the American Chemistry Council and representatives of PFAS manufacturers to collect, in part, supplementary effluent data, information on PFAS compound usage and discharge, and treatment technologies.

Likewise, in the ANPRM, EPA requested additional information on PFAS manufacturers and formulators to inform its planned January 2026 NPRM. EPA requested, in part, information on manufacturing processes, PFAS compound usage, wastewater streams, wastewater treatment activities, analytical methodologies used to monitor wastewater, and studies concerning environmental or human health impacts of PFAS discharges. EPA received nearly 30,000 comments, suggesting potentially complex and contentious rulemaking. 

Importantly, the planned NPRM and data collection and analysis referenced in the ANPRM occurred under the Biden Administration, and it is unclear how the Trump Administration will proceed. This potential rulemaking may shed light on the Trump Administration’s broader approach to PFAS regulation. Thus far, EPA’s approach to PFAS regulation under the Trump Administration has been less aggressive than the Biden Administration’s approach, although not as deregulatory as anticipated. For example, EPA published a proposed rule to incorporate exemptions and modifications to the reporting requirements for manufacturers and importers of PFAS under Section 8(a)(7) of the Toxic Substances Control Act. But the Agency is actively defending EPA’s designation of certain PFAS as hazardous substances under CERCLA and plans to retain key portions of its rule setting maximum contaminant levels under the SDWA. Thus, while EPA Administrator Lee Zeldin referenced his intent to develop ELGs for PFAS manufacturers in an April 2025 press release, it is unclear whether EPA will propose the ELGs and what they will entail.  

Refresher on Amara’s Law

Amara’s Law requires manufacturers of products containing intentionally added PFAS to report detailed information to the Agency by July 1, 2026 (six months later than originally planned). Manufacturers (or groups of manufacturers within the same supply chain seeking to consolidate reporting responsibilities) must submit reports for “each product or component that contains intentionally added PFAS.” Reports will include:

• A brief description of the product, including a universal product code ("UPC"), stock keeping unit ("SKU"), or other numeric code assigned to the product;
• The purpose for which PFAS are used in the product, including in any product components;
• The amount of each PFAS, identified by its Chemical Abstracts Service Registry Number ("CASRN"), in the product, reported as an exact quantity "determined using commercially available analytical methods" or as falling within a range approved for reporting purposes. Notably, if the amount of each PFAS is not available, the rule would allow reporting based on testing for total organic fluorine ("TOF") (a relatively cheaper option than testing for individual PFAS and an effective screening test, though an overbroad one in that it captures fluorine from sources other than PFAS);
• Manufacturer identification information, including the name, address, and phone number of a manufacturer representative; and
• Any additional information requested by the Agency.

Reporting will occur on MPCA’s newly-created reporting system, the PFAS Reporting Information System for Manufacturers (“PRISM”), which will be available for all manufacturers in January 2026. PRISM is modeled on the Interstate Chemicals Clearinghouse’s High Priority Chemicals Data System and may help manufacturers meet reporting requirements in other states. Non-confidential data will be published on an ongoing basis after MPCA review.

In comparison to the federal PFAS reporting program administered by the Environmental Protection Agency (“EPA”) under the Toxic Substances Control Act (“TSCA”), Minnesota’s program is generally seen as a stricter and more compliance-heavy program. For one, Minnesota defines PFAS more broadly than the Environmental Protection Agency (“EPA”) does under the Toxic Substances Control Act (“TSCA”) Section 8(a)(7), making their rule apply to a broader range of chemicals. Second, Unlike EPA’s rule, which focuses on historical PFAS uses from 2011 to 2022, Minnesota’s program targets current and future uses of the chemicals. Further, the final rule retained the industry-criticized “strict ‘due diligence’ reporting standard,” which requires manufacturers to collect information from their supply chains “until all required information is known.” In contrast, the EPA’s own PFAS reporting rule requires manufacturers to gather information “known to or reasonably ascertainable” to the manufacturer. 

Key Changes in the Final Rule

The final rule incorporates a number of revisions required after an administrative law judge flagged procedural and substantive defects in the proposed rule and its fee structure earlier this year. The original proposed rule would have charged manufacturers $1,000 to file their initial report, and $500 to file any updates, and $500 for each (required) annual recertification, the revenue from which would have vastly exceeded the costs to implement the law. The final rule changed this structure, and the state will now collect $800 for the initial report fee, with no costs for filing updates and no more annual recertifications. 

Beyond the fee structure changes, the final rule included an assessment of the cumulative effects of Minnesota’s program, in addition to federal and state reporting requirements. MPCA also introduced some flexibility for manufacturers reporting under the rule by adding group reporting options, allowing PFAS concentration to be reported as ranges instead of exact amounts, and adding processes for waivers, extensions, and trade secret requests. 

While the final rule represents an improvement over the initial proposal in terms of compliance obligations, Amara’s Law is nonetheless a new piece of the ever-evolving patchwork of state and federal PFAS reporting obligations for manufacturers. If you have questions about the final rule’s implications for your company’s processes, feel free to reach out to us directly.

To read our prior discussions on Minnesota’s legislative and regulatory action on PFAS, see here and here. 

This proposal represents the Trump Administration’s second attempt to promulgate a regulatory definition of WOTUS. The revisions specifically respond to the Supreme Court's most recent WOTUS decision, Sackett v. EPA (2023), which adopted a narrower interpretation of the term “WOTUS” and therefore limited federal jurisdiction to traditionally navigable waters and certain relatively permanent waterbodies and wetlands that are connected to traditionally navigable waters through a continuous surface connection.

Read the rest of this client advisory here. 

EPA’s long-standing Audit Policy offers significant benefits, ranging from elimination or reduction of civil penalties to tailored incentives for new owners and clearer correction timelines. Successfully leveraging the policy, however, requires careful planning, strategic decisions on disclosure, and an understanding of potential risks.

Co-hosted by Kelley Drye and Fehr Graham, this webinar features Kelley Drye Partners Wayne D’Angelo and Joseph Green and Fehr Graham’s Matt Schroeder, EHS Practice Lead. Together, they will share practical guidance on how companies can use EPA’s Audit Policy to manage compliance obligations, mitigate penalties, and minimize enforcement exposure. They will explore:

• Recent policy shifts at EPA under the Trump Administration and their implications for regulated industries
• The benefits of EPA’s Audit Policy and the New Owner Audit Policy
• Key considerations and potential risks when undertaking audits and disclosures
• Practical tips to preserve privilege and maximize penalty mitigation
• Insights into EPA’s coordination with state agencies and how that impacts disclosure decisions

Register here.

Kelley Drye is an accredited provider of CA, IL, NY, and TX CLE. This continuing legal education program has been approved for 0.5 New York non-transitional Professional Practice credit and 0.5 General credit for California, Illinois, and Texas. New York credit can be applied reciprocally to New Jersey requirements and Connecticut requirements. We will apply for CLE credit in other jurisdictions, upon request, but cannot guarantee approval.

The post covers a recent NAD case regarding Caraway Home's claims that their nonstick cookware is made without "forever chemicals" (i.e., per- and polyfluoroalkyl substances (PFAS)). Cookware Sustainability Alliance challenged this and other claims before NAD saying that the claims conveyed the unsupported messages that Caraway nonstick cookware is healthier than competitor nonstick cookware. Gonzalo and Katie dive into the case and share a few lessons from NAD's decision.

Read the full post here.

In a new episode of the Legal Download podcast, we unpacked the opinion—and what it means for agencies, project sponsors, and NEPA itself.

Listen now: The Future of NEPA: Supreme Court Signals a Reset
Available on Apple, Spotify, and SoundCloud

Why This Case Matters

Seven County is the Court’s most consequential NEPA ruling in decades. The decision restores agency discretion, narrows the scope of environmental reviews, and makes it harder for courts to vacate permits based on perceived procedural flaws.

The case involved a proposed 88-mile rail line approved by the Surface Transportation Board (STB) to support oil transport. The agency prepared a 3,600-page Environmental Impact Statement but declined to deeply analyze indirect upstream or downstream impacts. A lower court vacated the project approval—but the Supreme Court unanimously reversed.

Key Takeaways

1. Judicial Deference Reaffirmed
The Court emphasized that judges must defer to agency expertise under the Administrative Procedure Act. As long as the agency’s decision is reasonable and well explained, it stands.

2. Limits on Indirect Impact Analysis
NEPA does not require agencies to analyze environmental impacts outside their jurisdiction. In this case, STB was not required to model emissions from upstream drilling or downstream combustion.

3. Narrower Remedies for NEPA Flaws
Courts should only vacate an agency decision if the procedural error would likely have changed the outcome. This new standard limits project-stalling litigation over minor technical issues.

4. Practical Implications
The ruling may accelerate permitting timelines, reduce litigation risk, and re-anchor NEPA as a procedural—not substantive—statute. This is welcome news for developers and agencies alike.

What Comes Next

Agencies are revising their NEPA procedures in light of evolving CEQ guidance. This decision offers much-needed clarity and could shape future rulemaking and potential legislative reforms.

As Wayne noted in the episode, the ruling helps reset NEPA to its original, process-focused intent—limiting its use as a proxy for broader policy battles.

Frances added that the Court’s emphasis on agency discretion could ease litigation burdens and help regulators focus on projects that truly require judicial review.

Final Thought

This isn’t just a technical case. It’s a signal to courts, agencies, and litigants that NEPA is a tool for informed decision-making—not an open-ended mandate for delay.

If you have questions about the ruling’s implications for your project or permitting strategy, feel free to reach out to us directly.

Amara’s Law specifically requires manufacturers to report on the use of PFAS in their products and product components by January 1, 2026. With this deadline fast approaching, the Agency’s proposal outlines the details of reporting, including the parties responsible for reporting, waiver requests and extensions, exemptions, the protection of confidential information or trade secrets, and fees.

Under the proposed rule, a manufacturer or group of manufacturers must submit a report for “each product or component that contains intentionally added PFAS.” Importantly, manufacturers in the same supply chain may enter into an agreement to consolidate reporting responsibilities.

The following information must be reported under the proposed rule:

1. A brief description of the product, including a universal product code (“UPC”), stock keeping unit (“SKU”), or other numeric code assigned to the product;
2. The purpose for which PFAS are used in the product, including in any product components;
3. The amount of each PFAS, identified by its Chemical Abstracts Service Registry Number (“CASRN”), in the product, reported as an exact quantity “determined using commercially available analytical methods” or as falling within a range approved for reporting purposes. Notably, if the amount of each PFAS is not available, the rule would allow reporting based on testing for total organic fluorine (“TOF”) (a relatively cheaper option than testing for individual PFAS and an effective screening test, though an overbroad one in that it captures fluorine from sources other than PFAS);
4. Manufacturer identification information, including the name, address, and phone number of a manufacturer representative; and
5. Any additional information requested by the Agency.

MPCA addresses the extent of the “due diligence” required in collecting this information by asserting that manufacturers should makes requests from their supply chain “until all required information is known.” This appears to be a stricter and more burdensome standard than the U.S. EPA’s “known to or reasonably ascertainable” standard which governs data collection under the federal PFAS reporting program under the Toxic Substances Control Act.

A series of new definitions for a variety of key terms are provided, including the following:

• “Component” means a “distinct and identifiable element or constituent of a product. Component includes packaging only when the packaging is inseparable or integral to the final product's containment, dispensing, or preservation.”

• “Manufacturer” means “the person that creates or produces a product, that has a product created or produced, or whose brand name is legally affixed to the product.” For products imported into the United States when the person that created or produced the product is located outside of the country, manufacturer means “either the importer or the first domestic distributor of the product, whichever is first to sell, offer for sale, or distribute for sale the product in the state.”

Importantly, the rule would allow manufacturers to request that the chemical name; chemical identifying number; and specific supply chain information be maintained as trade secret data and not as public information.

Regarding fees, the Agency proposes to establish a $1,000 fee for manufacturers to submit their initial report. If manufacturers are reporting as a group, all members would be required to pay $1,000. Annual updates, which would be due by February 1 of each year if required because of a significant change to the product, new product information became available, or a new product is sold in the state, would incur a $500 fee.

Comments are due to MPCA by May 21, 2025 and can be submitted via MPCA’s website here. The Agency is also hosting a Public Hearing on the matter on May 22, 2025 at 2 pm. The Public Hearing will have a remote access option, and information on accessing the hearing is available in MPCA’s Notice of Hearing here.

Introduced earlier this year, SB130, titled An Act to Establish the PFAS Response Program and to Modify the Fund To Address PFAS Contamination (the Act), directs Maine’s Department of Agriculture, Conservation and Forestry (DACF) to establish and codify maximum PFAS levels in food. The Act was introduced by Sen. Henry Ingwersen, asserting in a press release that Maine’s farms “have been hit the hardest when it comes to the PFAS contamination crisis.” The Act would, among other things, codify portions of DACF’s existing PFAS Response Program into law.

Specifically, DACF would work alongside Maine’s Department of Health and Human Services (MHHS) and the Maine Center for Disease Control & Prevention (MCDC) to establish “maximum levels for PFAS in farm products.” The Act defines a “farm product” as “those plants and animals useful to humans and includes, but is not limited to, forages and sod crops, grains and food crops, dairy products, poultry and poultry products, bees, livestock and livestock products and fruits, berries, vegetables, flowers, seeds, grasses, Christmas trees and other similar products.”

Under the Act, exceedance of these maximum levels would trigger a prohibition on sale of the product affected and require the producer to incorporate on-farm mitigation efforts “as a prerequisite for any future authorization from the department to resume commercial sale of the product affected.”

The Act also directs DACF to provide testing support, “including conducting initial sampling and ongoing monitoring, to assist agricultural producers in understanding the extent of PFAS contamination on their commercial farms.” Testing may include but is not limited to “testing of groundwater, surface water, soil, animal tissue, animal blood and serum, plant tissue, animal feed, eggs, milk, manure and compost.”

Maine’s 2021 PFAS legislation, despite being heavily modified and delayed in light of timing, cost, and implementation concerns, has generally served as a framework that many other states have adopted as they try to enact legislation limiting PFAS in consumer goods. Indeed, Maine’s reporting requirements, notification procedures, “currently unavoidable use” exceptions, and phase-out system have been replicated in states like California, Maine, New York, Colorado, Minnesota, Washington, and Rhode Island.

Now, again, Maine can potentially set a new PFAS standard should it finalize SB130 as drafted. While some states (like Michigan) have introduced programs that test for PFAS on potentially contaminated sites, and other states (like New York) have regulations that require remediation of sites contaminated with PFAS (akin to what the federal government tried to initiate under the Biden Administration), none as yet have set limits on the presence of PFAS in crops.

A wide range of groups -- including farmers, environmentalists, research organizations, environmental remediation companies, and citizens – were supportive of the proposed bill at a February 6 public hearing. In light of Maine’s status as a first-mover in PFAS legislation, the prospects for passage of the bill appears strong.

Most urgently, this coming January 29 is the deadline for manufacturers and importers to file reports or seek an extension under a Canadian PFAS reporting program announced in July 2024.

In the United States, while the PFAS reporting deadline is not until January 2026 for most business, companies are urged to act now, if they have not already, to conduct the extensive due diligence required to complete the report.

The Canadian program requires any entity that manufactured or imported PFAS above certain thresholds to disclose to the Canadian government a variety of information, including PFAS identity, quantity, and concentration. Specific reporting requirements, including reporting thresholds, vary based on whether the PFAS is manufactured directly in Canada, imported into Canada, or imported into Canada as part of a product.

Reporting is due to the Canadian Minister of the Environment no later than January 29, 2025, though reporting entities may seek a one-time extension (which should be filed by January 22). To request an extension, entities must submit, among other things, the substance identifier for which they will eventually be reporting, the reason for the extension request, as well as the requested amount of time for the extension.

The U.S. Environmental Protection Agency (EPA or the Agency) PFAS reporting rule, issued under Section 8(a)(7) of the Toxic Substances Control Act (TSCA), requires any entity that manufacturers, imports, or has manufactured or imported PFAS or PFAS-containing articles in any year since Jan. 1, 2011, to electronically report information regarding PFAS uses, production volumes, disposal, exposures, and hazards, among other things. Reporting obligations are less strenuous for entities that only imported articles containing PFAS. Reporting is mandatory for captured entities manufacturing/importing regulated PFAS regardless of PFAS quantity – unlike Canada, there are no de minimis exemptions to reporting.

EPA’s on-line PFAS reporting system opens July 2025. Reporting entities are required to complete all reporting by January 11, 2026, and “small manufacturers” have until July 11, 2026.

Accumulating data internally, and requesting necessary data from upstream suppliers, can be a long, detailed-ridden, and laborious process. Reporters should begin collecting data now to ensure compliance with these deadlines and with the reporting requirements themselves.

For inquiries on these PFAS reporting rules or requesting an extension for the Canadian reporting rule, please feel free to reach out to the authors of this post, Joe Green and Zach Lee. Also, feel free to learn more about Kelley Drye’s PFAS practice here.

While the changes are effective as of January 1, 2025, businesses have three years (until January 1 ,2028) to comply with the new short-form and other requirements. Products manufactured and labeled prior to January 1, 2028, using the “old” version of the short-form warnings will not have to be relabeled (i.e., there is an unlimited “sell-through” period).

Not So Short-Form

Prop 65 requires businesses to provide warnings to consumers prior to selling a product in California that could cause an exposure to a listed chemical. The law does not specify required warning text or methods, other than that the warning be “clear and reasonable” and provided to the consumer prior to exposure. However, OEHHA regulations specify warning language and methodology for various product categories which, if utilized, are deemed de facto compliant (a/k/a “safe- harbor” warnings). To avoid challenge, companies routinely utilize these “safe-harbor” warnings, including “short-form” versions that were originally introduced in the 2016 Prop 65 amendments. The brevity of this method, combined with this label’s ability to comply with Prop 65 without disclosure of a specific chemical, has resulted in its widespread popularity with manufacturers, distributors, and retailers.

Long Form:

⚠WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer [birth defects or other reproductive harm]. For more information go to www.P65Warnings.ca.gov.

OLD Short-Form:

⚠ WARNING: CANCER [REPRODUCTIVE HARM] – www.P65Warnings.ca.gov.

The ”short-form” warning originally was intended for use with products with limited label space, though the regulations do not include this limitation. OEHHA and activist groups have been critical of the short-form for failing to provide consumers information about the chemical for which the warning is being provided, as well as its widespread use on products with sufficient label space for the full text warning.

Now, the short-form warning will require identification of at least one chemical per endpoint (cancer and reproductive harm) and two options for the text, as follows:

For exposures to listed carcinogens:

⚠ WARNING: Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov.

or

⚠ WARNING: Can expose you to [name of chemical], a carcinogen. See www.P65Warnings.ca.gov.

For exposures to listed reproductive toxicants:

⚠ WARNING: Risk of reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov.

or

⚠ WARNING: Can expose you to [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov.

For exposures to both listed carcinogens and reproductive toxicants:

⚠ WARNING: Risk of cancer from exposure to [name of chemical] and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov.

or

⚠ WARNING: Can expose you to [name of chemical], a carcinogen, and [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov.

For exposures to a chemical that is listed as both a carcinogen and a reproductive toxicant:

⚠ WARNING: Risk of cancer and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov.

or

⚠ WARNING: Can expose you to [name of chemical], a carcinogen and reproductive toxicant. See www.P65Warnings.ca.gov.

The regulations also now explicitly allow for use of the signal phrase “CALIFORNIA WARNING” or “CA WARNING” in lieu of simply “WARNING.”

The short-form can be used regardless of the size of the product package, but must be provided in a minimum 6-point font and “conspicuous” (i.e., “conspicuousness as compared with other words, statements, designs or devices on the label, labeling, or sign, as to render the warning likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use”). In sum, while OEHHA deleted language stating that font size of the warning must be no smaller than the type size used for other consumer information on the product, the warning must be obvious to the consumer.

Warnings for Internet Purchases – A Total Mess (UPDATE)

The amendments make highly confusing and, frankly, irrational changes to the provisions governing internet purchases. The final regulatory text seemingly strikes the requirement that products sold online require warnings provided both on the website and accompanying the product (e.g., on the product package or receipt delivered to the customer or similar method). Indeed, OEHHA dropped proposed language from the final rule that specified “In addition, the warning must also be included: on or with the product when delivered to the consumer … on labeling accompanying the product … or as otherwise specified ….”

For a glorious moment it appeared that OEHHA had eliminated a major practical hassle for companies hesitant to include Prop 65 warnings on products not sold in California, but obviously find it difficult to have separate product labeling for one state.

Alas, we cannot have nice things. OEHHA issued “clarifying” guidance stating that it

removed the provision quoted above … [as] that language was merely a clarification of the existing language and did not change existing law. Existing language already requires two warnings for internet purchases – one prior to purchase and one “also” prior to exposure.

Nonsense. The statutory requirement is that the warning be provided prior to exposure. (“No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.”) Historically, before the advent of internet purchases through the current day, a satisfactory warning may be provided through a number of mechanisms, including through a product specific warning in a store. Nowhere and at no time do the regulations specify that two different warnings (prior to purchase and prior to use) need to be provided.

The new “internet purchase” regulations read as follows:

For internet purchases, a warning meets the requirements of this subarticle if it complies with the content requirements of Section 25603 and the warning also must be provided using one or more of the following methods:

(A) a warning on the product display page, or

(B) a clearly marked hyperlink using the word “WARNING” or the words “CA
WARNING” or “CALIFORNIA WARNING” on the product display page that links
to the warning, or

(C) an otherwise prominently displayed warning provided to the purchaser prior to completing the purchase. If the warning is provided using the short-form warning label content pursuant to Section 25602(a)(4), the warning provided on the website may use the same content. For purposes of this subsection, the warning is not prominently displayed if the purchaser must search for it in the general content of the website.

Section 25603 states that “a warning meets the requirements of this subarticle if it is provided using one or more of the methods required in Section 25602 and includes all the following elements ….” The section then proceeds to detail the familiar text and other content (such as the yellow triangle symbol) of the long- and short-form warnings.

Section 25602(b) governs the methods for providing warnings for “internet purchases” and specifies three on-line options for doing so – none of which indicate that a warning also must be provided on the product package or otherwise with delivery of the product. So long as the warning includes the required text and other content, that’s all the warning you need.

Nevertheless, OEHHA’s convoluted guidance says that the regulatory text actually means something else. [Presumably, OEHHA believes that their interpretation is valid because the regulation states that an internet purchase warning must meet Section 25603’s content requirements “and the warning also must be provided” using one of the three on-line methods. If so, that is an awfully thin reed to rely on; use of the word “also” in that statement does not refer back to other methods of warning delivery but to the fact that the warning must meet the textual content requirements.]

In sum, while it appeared that OEHHA had made rational changes to the internet purchase warning requirements, in fact, they have made things more confusing. While lawyers like me know to look at the guidance documents because of such shenanigans, it is not unreasonable for businesses to rely upon the regulatory text, particularly when it is not all that confusing! And in this case, as shown above, the text is clear on what is required for internet purchases - clear that is unless you are OEHHA.

I would like to think that no court would accept OEHHA's twisted version of the regulatory text – and I do believe that providing a clear internet warning prior to purchase is sufficient to satisfy Prop 65 warning obligations. However, given that California courts often defer to OEHHA or the Attorney General’s interpretation of requirements, it is hard to counsel clients that compliance with the explicit regulatory text governing internet purchases is sufficient to insulate a business from Prop 65 enforcement.

It shouldn’t be this difficult.

Grace Period for On-Line Retailers

Finally, the regulations provide a 60-day grace period for on-line retailers to update webpage warnings after receiving a notice of the change from the manufacturer or after a 60-day notice of violation is received from a plaintiff.

Other Amendments

Food Product Warnings: The amendments specify that the short-form warning is an option for food products. The only difference is that “short-form” food product warnings do not require the yellow triangle symbol and include a food-specific web address (www.P65Warnings.ca.gov/food).

Motor Vehicle/Marine Vessel Parts: As with other categories of products/exposures, OEHHA has now adopted warning language tailored to address exposures from: (1) “Passenger or Off-Highway Motor Vehicle Parts”; and (2) “Recreational Marine Vessel Parts.”

BPS initially was listed under Prop 65 on December 29, 2023, after being identified by California's Office of Environmental Health Hazard Assessment (OEHHA) as a female reproductive toxicant. Enforcement actions are allowed to commence after expiration of a one year grace period. Hence, Prop 65 plaintiffs are expected imminently to start issuing Notices of Violation for products containing BPS, which is often found in thermal paper, such as cash register receipts and adhesive labels; hard plastic, such as food and liquid storage containers and utensils; and synthetic clothing fibers, such as those used in athletic and waterproof gear. BPS has also been detected in food and personal care products that have come into contact with BPS-containing storage containers.

In addition, on December 12, 2024, California’s Developmental and Reproductive Toxicant Identification Committee (DARTIC), responsible for identifying chemicals that cause cancer or reproductive toxicity under Proposition 65, unanimously voted to list BPS as a male reproductive toxicant. OEHHA is expected to adopt the decision and expand the BPS listing to cover exposures to both men and women.

Bisphenols are a high priority target for OEHHA and citizen suit “bounty hunter” plaintiffs. BPA, to which BPS is similar in both chemical structure and utility, has been a major focus of Prop 65 actions since it was first listed in 2015, with over 450 notices of violation filed. In the wake of the BPA listing and other regulatory actions targeting the chemical, including by FDA and numerous states, many manufacturers turned to BPS as a substitute.

OEHHA has not adopted “safe harbor” levels for BPS based on the male or female reproductive endpoint. Accordingly, in assessing whether a product requires a Prop 65 warning, companies are left to determine for themselves, using ambiguous guidance from the state, what the threshold for warning should be. Of course, plaintiffs can have a different view of the science and the appropriate “safe” level. Given the uncertainty inherent in this state of affairs, it is not uncommon for businesses to choose to provide a Prop 65 warning if any amount of the substance is present in a product to which consumers may be exposed.

Background On Proposition 65

Proposition 65 was adopted by voter referendum in 1986 as the Safe Drinking Water and Toxic Enforcement Act. The law requires businesses who expose individuals in California to substances deemed by the state to cause cancer or reproductive harm to provide a clear and reasonable warning prior to exposure. OEHHA implements Proposition 65 and maintains a list of chemicals, over 900 currently, identified as carcinogens and reproductive toxins for which warnings may be required.

If a warning is required, a business must provide one that is “reasonably calculated, considering the alternative methods available under the circumstances, to make the warning message available to the individuals prior to exposure.” The regulations provide that if certain specific text is used, the warning is deemed to be per se compliant (such as below for a product containing both a carcinogen and reproductive toxin):

⚠ WARNING: This product can expose you to chemicals including [name of one or more listed chemicals], which is [are] known to the State of California to cause cancer, and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.

A “short form” of the warning also is available. On-line purchases that involve California consumers also may require a warning.

The failure to provide a warning can subject violators to penalties of up to $2,500 per day and per exposure. The state Attorney General may bring a lawsuit to enforce the law’s requirements, and some of the most high profile cases are handled in this manner. However, most cases are brought under the law’s “bounty hunter” provision, which allows private plaintiffs to bring an action seeking penalties for alleged violations. Each month, scores of new cases are filed mostly by approximately a dozen highly active private plaintiff groups alleging failure to warn due to the presence of listed substances. Thus, the law leaves businesses vulnerable not only to scrutiny from state regulators, but from private citizens as well.

A warning is not required if an exposure is so low as to create “no significant risk” of cancer or reproductive harm (per stringent standards specified under the regulations). While the exemption provides entities with some relief from liability, the burden rests on the business to demonstrate that a particular exposure level poses no significant risk, a task that can require extensive testing and technical analysis.

To facilitate compliance, OEHHA has adopted “safe harbor” warning threshold levels for approximately 300 substances that helps eliminate some of the uncertainty in determining what exposure level requires a warning. However, these “safe harbor” levels generally are very low, in accordance with highly conservative risk assumptions.

Ultimately, Proposition 65 is the source of lawsuits against many businesses for failure to provide a warning. These cases often are brought against companies that are unaware that low levels of listed chemicals are present in their products. When confronted with a lawsuit from a plaintiffs group, these businesses often rationally decide to settle the case by agreeing to provide a warning and paying a penalty, typically in the range of $20,000-$150,000 or more, instead of facing the costs during litigation of establishing that an exposure is exempt from warning requirements. Hence, historically, the statute has encouraged over-warning, as businesses may provide warnings even where an exemption may apply simply to avoid costs.

For extensive commentary on Prop 65, please read more on Kelley Green Law.

This request for comments may seem familiar. In September 2023, MPCA promulgated two Request for Comments (“RFCs”) in furtherance of the state’s Per- and Polyfluoroalkyl Substances (“PFAS”) in Products Ban (also known as “Amara’s Law”). Now, having received over 500 pages worth of comments on these two rules, MPCA plans to combine these two rules and is seeking comments accordingly.

The two previous RFCs focused on implementing the reporting and fees elements of the Minnesota PFAS in Products Ban. In combining these efforts, MPCA is seeking “to ensure that the fee process is directly a part of the reporting system being created for products with intentionally-added PFAS.”

Under Amara’s Law, in addition to banning numerous products containing intentionally-added PFAS, MPCA is authorized to promulgate rules requiring “manufacturers” of a product containing “intentionally-added PFAS” to disclose to the Agency, among other things, a brief description of the product (including a universal product code (“UPC”), stock keeping unit (“SKU”)), the purpose for which PFAS are used in the product (including in any product components), and the amount of each PFAS (identified by its chemical abstracts service registry number) in the product, reported as an exact quantity determined using commercially available analytical methods. In developing a rule to effectuate these disclosure requirements, MPCA sought, and continues to seek, answers to the following questions:

• Are there definitions in the law for which clarification would be useful to understanding reporting responsibilities?
• Are there terms or processes in the law for which clarifications will help reporting entities determine reporting status or data-gathering process?
• How should the MPCA balance public availability of data and trade secrecy as part of the reporting requirements?
• Are there any terms used in the law that should be further defined or where examples would be helpful?
• Are there specific portions of the reporting process that should not be defined through guidance or the development of an application form?
• Other questions or comments relating to reporting or the process of reporting.

Regarding fees, Amara’s Law authorizes the MPCA to require a fee to submit this information “to cover the agency’s reasonable costs to implement” Amara’s Law. In developing the fee rule, the MPCA sought comments on following questions:

• Should the Agency consider tiered fees for different sizes of business?
• Should the Agency consider a per-product or per-company fee?
• Should the Agency consider a per-PFAS or PFAS amount fee?
• Are there other state program fee structures on which the Agency should model the fees?
• Should the Agency consider a fee to be paid when updates to information on previously reported products are submitted? (e.g., decreased amounts or elimination of one or more PFAS)

Now, MPCA simply is combining these rulemaking dockets. There are no draft rules yet, though MPCA is continuing to solicit comments on these two PFAS efforts to inform draft rule development. Thus, this is simply the second of several opportunities for public comment and input on this rulemaking.

Comments submitted to the original RFCs will still be considered along with the responses to this second RFC, so there is no need to resubmit comments. For those entities that missed this first opportunity though, this is an excellent opportunity to have your voice heard prior to MPCA’s drafting rules regarding these reporting and fee requirements.

Comments are due back to the Agency by December 19, 2024.

Enforcement

While penalties are to be assessed on a “case-by-case” basis under AB 347, the minimum penalty for a first-time violation is $10,000. The factors to be considered by the Department of Toxic Substances Control (“DTSC”) in assessing the penalty are common ones: nature and severity of the violation; whether the entity acted in good faith; history of prior violations; evidence that the violation was willful; and the degree of cooperation exhibited by the alleged violator.

The enforcement process will be initiated by DTSC’s issuance of a Notice of Violation (“NOV”), which is to be based on:

(1) Testing: Either testing by the Department or test results submitted by the manufacturer (as part of the registration process discussed below) showing a violation;

(2) Ingredients: The Department determines that “an ingredient identified on a covered product’s label” is a violation of a PFAS restriction; or

(3) Other: The Department finds a violation of AB 347 (including the registration requirement).

AB 347 also provides authority to prohibit the sale of noncompliant products in the state.

While the bill does not expressly allow citizens to initiate enforcement proceedings, citizens are likely to independently test, verify or inspect products and report this information to the Department.

Notably, NOVs are to be made public and published on the DTSC website, including relevant product information.

Manufacturer Registration

On or before July 1, 2029, manufacturers of covered products must register with DTSC, pay a registration fee, and provide a statement certifying compliance with the applicable prohibitions on the use of PFAS to the Department. While the statute does not provide what must be included in this statement, it authorizes the Department specifically to request “technical documentation, including analytical test results, to demonstrate compliance with the applicable covered PFAS restriction.”

The bill does not include any exemptions for small businesses or de minimis sales, which are increasingly common in PFAS bans in sister states. It is possible that such exemptions may be adopted as DTSC establishes implementing regulations.

Testing

As highlighted in a recent court case, a significant PFAS enforcement challenge is the identification and use of appropriate testing methods to determine the presence of PFAS in products. AB 347 directs DTSC, by January 1, 2029, to publish online a list of accepted methods for testing to determine whether a covered product complies with PFAS restrictions and appropriate third-party accreditations for testing laboratories.

In particular, it will be interesting to see how DTSC wrestles with testing for compliance with the 100 ppm “total organic fluorine” (“TOF”) limits for textiles and other products. As TOF testing captures fluorine sources other than PFAS, it is unclear whether a “positive” TOF test result should be considered a violation without further inquiry.

In this case, plaintiffs brought suit against the manufacturer claiming that advertising of the menstrual products as “pure cotton” was untrue given that TOF testing indicated the presence of organic fluorine. While granting the motion to dismiss, the judge has allowed the plaintiffs more time to substantiate their claim that PFAS specifically are present in the product and, if so, at harmful levels. The plaintiffs will now have to do so through a different and more focused testing program.

This should not be a surprising result. While TOF testing may, in fact, be the “gold standard” for screening for potential PFAS presence, as advocated by plaintiffs’ counsel, the test was not designed to be the sole determinative method for identifying PFAS in products. Though a “positive” TOF test often is due to PFAS (roughly 85-95% of the time), because organic fluorine may be present as a result of other non-PFAS chemicals, additional confirmatory testing is necessary to demonstrate that PFAS are actually in a product. Conversely, a “negative” TOF result provides strong confidence that the product/material is PFAS-free. For this reason, the TOF test – which is far cheaper than screening for the thousands of individual PFAS compounds – is an efficient mechanism for businesses to make an initial determination if a product or material should be further investigated for PFAS contamination.

Interestingly, the judge’s decision points to an implementation problem California and other states are grappling with as they begin regulating PFAS chemicals. Citing California Health and Safety Code § 108945, the judge notes that the Golden State defines “regulated PFAS” as either PFAS that are “intentionally added to a product and that have a functional or technical effect in the product,” or “the presence of PFAS in a product or product component at or above 100 parts per million, as measured in total organic fluorine.” Enforcement of the 100 ppm standard as written is complicated given that, at times, a hit for TOF does not mean with any certainty that PFAS are actually present in a product.

Dozens of states now have laws and regulations restricting PFAS in some or all types of products, as well as imposing reporting and other requirements. Six states have banned PFAS specifically in menstrual products, including California, Maine, Vermont, Rhode Island, Colorado, and Connecticut. Many of these jurisdictions are struggling to implement their PFAS product bans citing implementation costs, technological shortcomings, and legislative scoping issues.

In light of this court decision, many state regulators should assess the enforcement implications for alleged violators whose products indicate the presence of organic fluorine via TOF testing, and the role of additional PFAS-specific testing in such actions.

The case is Bounthon v. The Procter & Gamble Company (Case No. 23-cv-00765-AMO) (N.D.Ca. 2024).

The Agency announced that the delay is due to “resource constraints.” In March, EPA’s TSCA program budget was slashed by $5 million compared to what it was for the fiscal year 2023 budget. Given that the Agency is in the process of developing an entirely new online reporting platform for this rule, it is likely that budget cuts impacted the ability for EPA to rollout the platform on time.

The disclosure rule was initially promulgated in response to an amendment to the Toxics Substances Control Act (“TSCA” or “the Act”) that was tucked away in the National Defense Authorization Act for Fiscal Year 2020. The amendment added Section 8(a)(7) to the Act, which directs EPA to require PFAS reporting under TSCA. TSCA generally grants EPA the authority to set use restrictions and reporting, record-keeping, and testing requirements for certain chemical substances and/or mixtures that may pose an unreasonable risk to human health or the environment.

On June 28, 2021, EPA proposed TSCA Section 8(a)(7) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances. After comments were received and reviewed, EPA published the final rule (“TSCA PFAS Reporting Rule”) on October 11, 2023, effective November 13, 2023. The rule requires any entity that manufacturers, imports, or has manufactured or imported PFAS or PFAS-containing articles in any year since Jan. 1, 2011, to electronically report information regarding PFAS uses, production volumes, disposal, exposures, and hazards, among other things. Reporting obligations are less strenuous for entities that only imported articles containing PFAS.

Despite the rule’s seemingly simple reporting requirements, companies will likely spend significant amounts of time, labor and resources ensuring that their mandatory disclosures are compliant. Indeed, there are over 15,000 types of PFAS identified so far, each with their own chemical makeup and profile.

Entities originally had until May 8, 2025 to report, and “small manufacturers” who are subject to the rule exclusively through article imports would have had until November 10, 2025. Now that the rule’s implementation is being delayed, the Agency notes that most reporters will be required to complete all reporting by January 11, 2026, with small manufacturers having until July 11, 2026.

Under HF2310 (also referred to as “Amara’s Law”), manufacturers of products containing PFAS are subject to Minnesota PFAS disclosure requirements. To comply, companies must submit information to MPCA including: a brief description of the product, including a universal product code (“UPC”), stock keeping unit (“SKU”), or other numeric code assigned to the product; the purpose for which PFAS are used in the product, including in any product components; the amount of each PFAS, identified by its CASRN, in the product; the name and address of the manufacturer and the name, address, and phone number of a contact person for the manufacturer; and any additional information requested by the Agency. Similar reporting requirements are also common under other state PFAS statutes like Maine and Washington. Minnesota’s reports are due in January 2026.

During a July 18 MPCA webinar, Agency staff indicated that the state’s reporting system will heavily borrow from the existing High Priority Chemicals Data System model that is part of the Interstate Chemicals Clearinghouse. MPCA is crafting this system in conjunction with the Northeast Waste Management Officials Association, which last year developed draft model state PFAS legislation. The legislation offers a menu of policy options for state legislatures to address potential PFAS contamination and exposure from consumer products, like a near-total ban on PFAS-containing consumer products within three years, product reporting requirements, “extended producer responsibility” obligations (i.e., product “take back”/recycling programs), and, relevant here, the new multi-jurisdictional “clearinghouse” to assist state environmental agencies with compliance and enforcement of Amara’s Law and others like it.

Speaking broadly, manufacturers are growing increasingly concerned that publicly-accessible PFAS disclosures are going to be used by plaintiffs’ attorneys who will bring false advertising claims against them. Just last month, a proposed class action lawsuit was filed in a California federal court claiming that a razor company’s products contained PFAS and that the plaintiffs would not have purchased the product had they known PFAS were present. The information regarding the products’ PFAS content was discovered via publicly accessible company disclosures filed under the Maine PFAS reporting requirement prior to the law’s amendments.

The case is truly groundbreaking – never before have we seen a case where state-mandated PFAS disclosures have led to allegations of false advertising. Testing ground or not, the case is likely one of many to come as law firms opportunistically scan the environment for cases and plaintiffs.

Turning back to Minnesota, MPCA staff also shared that the Agency expects to finalize draft rules related to associated fee structures and related documents by October of this year.

Amara’s Law also prohibits a person from selling, offering for sale, or distributing for sale carpets or rugs; cleaning products; cookware; cosmetics; dental floss; fabric treatments; juvenile products; menstruation products; textile furnishings; ski wax; or upholstered furniture, if they contain intentionally added PFAS, beginning January 1, 2025. Beginning January 1, 2032, all products containing PFAS are banned, unless MPCA determines, by rule, that the specific products or product categories for constitute a “currently unavoidable use.” Deliberations on what constitutes a “currently unavoidable use” are ongoing, though a draft rule is likely to be promulgated sometime this year.

As is evident, Minnesota’s PFAS reporting requirements diverges from other states with similar requirements like Maine, Rhode Island, New York, and Washington, creating a complicated landscape for businesses and organizations navigating compliance. This discrepancy will likely lead to considerable confusion for entities that must adhere to dueling sets of regulations. Organizations will need to manage dual reporting systems, each with its own rules and deadlines, complicating compliance efforts and undoubtedly increasing operational costs.

Finding that 1-BP poses an unreasonable risk to human health and that there are safer alternatives available, the proposal bans all uses of 1-BP in consumer products, including spot cleaners, aerosol spray degreasers, stain removers, and automotive care products. However, the Agency is exempting building insulation from the ban as the underlying risk evaluation found that this use does not pose an unreasonable risk to human health.

Regarding commercial and industrial uses, the Agency proposes to ban 1-BP from uses in dry cleaning, stain removers, adhesives, sealants, automotive care products, anti-adhesive agents, functional fluids and craft materials. The rule says these uses make up “an estimated 3% of the current production volume of 1-BP.” The rule provides that uses outside of the ones mentioned may continue to utilize 1-BP, but would be subject to workplace safety controls, including the implementation of a concentration-based inhalation exposure limit. Workers would generally be required to wear “chemically resistant gloves made of supported polyvinyl alcohol or a multiple-layer laminated material,” and undergo 1-BP specific safety training.

The consumer-use bans would become effective six months after the final rule is published in the Federal Register. Industrial and commercial uses will be banned 18 months after the final rule is published. EPA will accept public comments on the proposed rule for 45 days following publication.

This action represents the seventh proposal under TSCA since Congress overhauled the law in 2016, and is the sixth solvent to be targeted by the Agency. The also has outstanding proposals for n-methylperrolidone (“NMP”), trichloroethylene (“TCE”), perchloroethylene (“PCE”) and carbon tetrachloride (“CTC”). A final methylene chloride rule was released earlier this year.

EPA is accepting comments on the proposal through September 23, 2024.

H7356 (a/k/a “Consumer PFAS Ban Act of 2024” or “the Act”) was introduced in the Rhode Island House in late-January earlier this year, and survived numerous amendments and committees before it was successfully approved and sent to the upper chamber in mid-June. The Rhode Island Senate passed the Act quickly, sending it to Governor Daniel McKee’s office on June 21. Governor McKee signed the Act five days later.

Effective January 1, 2027, no person will legally be able to manufacture, sell, offer for sale or distribute in Rhode Island any “covered product” that contains “intentionally added” PFAS. “Covered products” include carpets or rugs, cookware, cosmetics, fabric treatments, juvenile products, menstrual products, ski wax, and textile articles. The same goes for artificial turf and outdoor apparel for severe wet conditions, unless accompanied by a “legible, easily discernable disclosure” including the following statement: “Made with PFAS chemicals.”

The prohibition does not apply to the sale or resale of used products.

Effective January 1, 2025, the Act also prohibits a person, local government, or state agency from discharging class B firefighting foam containing intentionally added PFAS, including for training purposes. The manufacturing or sale of class B firefighting foam containing PFAS is also prohibited on the same date. The bill requires manufacturers/sellers of firefighting personal protective equipment (“PPE”) to provide written notice to the purchaser at the time of sale if the firefighting PPE contains PFAS.

The Rhode Island Department of Environmental Management is responsible for implementing and enforcing the PFAS restrictions. The bill authorizes the Department to seek civil penalties of up to $1,000 for a first violation and $5,000 for subsequent violations.

Meanwhile, in Pennsylvania, HB 2238 similarly stands to ban intentionally added PFAS in covered products effective January 1, 2027, including artificial turf, cleaning products, carpets or rugs, cookware, cosmetics, dental floss, fabric treatment, food packaging, juvenile products, menstrual products, oil and gas products, ski wax, and textile articles. A total ban on products containing PFAS would become effective January 1, 2033, except for where the introduction of PFAS is a currently unavoidable use. Similar exemptions are provided for in Maine’s PFAS ban. Moreover, if passed as drafted, the bill would also require manufacturers whose products contain intentionally added PFAS to register with the Pennsylvania Department of Environmental Protection.

While Rhode Island and Pennsylvania have given themselves a longer runway to implement these prohibitions, “first mover” states like Maine have spent the last several years struggling to implement their PFAS bans. Indeed, two years after Maine passed their initial PFAS-in-products prohibitions, the state significantly overhauled its ban in light of noteworthy implementation difficulties, in turn dramatically shrinking the scope of the reporting requirements and creating a staggered phase-out system for numerous consumer products containing intentionally added PFAS.