Kelley Green Law https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law Chemical law, emerging contaminants, and regulatory news and insights Sun, 13 Oct 2024 02:39:38 -0400 60 hourly 1 Maine Dramatically Revamps and Delays PFAS Reporting Rules and Consumer Product Bans https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-dramatically-revamps-and-delays-pfas-reporting-rules-and-consumer-product-bans https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-dramatically-revamps-and-delays-pfas-reporting-rules-and-consumer-product-bans Thu, 25 Apr 2024 15:30:00 -0400 After years of tumultuous and unpredictable regulatory uncertainty, the Maine Legislature has again decided to overhaul the state’s PFAS in Products program, dramatically shrinking the scope of the reporting requirements and creating a staggered phase-out for numerous consumer products containing intentionally added per- and polyfluoroalkyl substances (“PFAS”). Specifically, the recently signed bill does away with the requirement compelling all manufacturers of products with intentionally added PFAS to report certain information to the Maine Department of the Environment (“MDEP” or “the Department”), and instead only requires manufacturers of such products to report if MDEP has determined that the product is a “currently unavoidable use” (“CUU”).

Under the previous regime with which many companies have been scrambling to comply, all manufacturers of products for sale in Maine, including online sales, that contain PFAS were required to submit to MDEP by January 1, 2025, a one-time written notification that includes a brief description of the product, the purpose for which PFAS are used in the product, and the amount of PFAS in the product, among other things, subject to limited exceptions. Now, only manufacturers whose products contain intentionally added PFAS and for which MDEP has determined that the use of PFAS in the product is a CUU must report. The amendment leaves to the Department to “by rule identify specific products or product categories” containing intentionally added PFAS for which it has determined that use of PFAS in the product is a CUU. The Department has already begun a rulemaking initiative on this matter.

Note that there are two manufacturer exemptions to this reporting rule: (1) manufacturers that employ 100 or fewer people; and (2) when MDEP has granted a waiver because the Department has already determined that “substantially equivalent information” is already publicly available. There are also multiple products that are exempt from this reporting rule, including firefighting/fire suppressing foam, medical devices and drugs regulated by the U.S. Food and Drug Administration (“FDA”), motor vehicles and motor vehicle equipment, and semiconductors, among numerous other products.

Beyond this surprising constriction of the reporting requirement, the bill will also phase out certain products containing intentionally added PFAS, prohibiting the sale, offering for sale, or distribution for sale of the following products that contain intentionally added PFAS, unless they have been granted a CUU:

January 1, 2026 – Cleaning products, cookware, cosmetics, dental floss, juvenile products, menstruation products, textile articles (excluding outdoor apparel for severe wet conditions or that is included in or a component of a watercraft, aircraft or motor vehicle), ski wax, or upholstered furniture.

January 1, 2029 - Artificial turf and outdoor apparel for wet weather (unless the apparel includes a disclosure that includes “Made with PFAS chemicals.”).

January 1, 2032 – All other products, excluding refrigeration, cooling and heating, ventilation, and air conditioning equipment.

January 1, 20240 - Refrigeration, cooling, and heating, ventilation, and air conditioning equipment.

Note that these prohibitions also apply to products that do not contain PFAS but are sold in a “fluorinated container.”

While first-movers in their field often recalibrate their approach, this bill constitutes the third time the Maine legislature has decided to amend the Pine Tree State’s PFAS in products laws. Granted, Maine is not alone in their struggle to craft cognizable rules and standards: Minnesota now stands as the state with the most aggressive PFAS reporting law, with reports due by January 2026 covering almost all PFAS-containing products sold in the state. In contrast, California Governor Gavin Newsom vetoed legislation that would have required consumer product manufacturers to submit annual reports on intentionally added PFAS in all products and product components beginning in 2026, expressing concerns about the cost and complexity of such a program. As the United States Congress considers similar legislation, it will be interesting to see how the difficulties states are experiencing in creating and implementing PFAS laws translate to the National level.

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PFAS Grease-Proofing Agents Officially Slip Out of U.S. Market https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/pfas-grease-proofing-agents-officially-slip-out-of-u-s-market https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/pfas-grease-proofing-agents-officially-slip-out-of-u-s-market Wed, 06 Mar 2024 14:04:00 -0500 Rest assured, you can stop worrying about ingesting “forever chemicals” when you use fast-food wrappers, microwave popcorn bags, and take-out paperboard containers. Last week, FDA announced here that so-called “grease-proofing” food packaging products containing PFAS will no longer be sold in the U.S. According to FDA, these types of food-contact paper products are the highest contributors of PFAS dietary exposure among all FDA authorized uses of food-contact products containing PFAS.

Other FDA-authorized categories, such as non-stick pots and pans, rubber O-rings and gaskets used in food processing equipment, and manufacturing aids added to other food contact polymers remain in place at the federal level. FDA determined that PFAS in these products would not be available to migrate at more than negligible amounts under the intended conditions of use and would, therefore, not pose a safety risk.

The recent phase-out of PFAS-containing grease-proofing food packaging was a result of a series of FDA determinations and industry action. In the early 2000s, FDA first raised safety concerns with certain PFAS substances commonly referred to as “C8 compounds” or “long-chain” compounds. This category was phased out of the U.S. market between 2011 and 2016 voluntarily and through FDA authorization revocations. In their stead, industry began to use “short-chain” PFAS replacements that had been authorized for use as grease-proofing agents.

In 2020, FDA found that a short-chain PFAS – 6:2 fluorotelomer alcohol (“6:2 FTOH”) – also may pose a safety risk. FDA found that under certain conditions, the smaller PFAS “sidechain” can detach from the polymerized molecule. As a result, there is potential for PFAS to migrate to food at levels that may result in a potential safety concern. FDA sought and obtained market-phase-out commitment letters from each of the manufacturers of PFAS grease-proofing agents that contain this substance. And in 2023, FDA received confirmation from manufacturers of all remaining authorized grease-proofing substances containing different types of PFAS (not the subject of the safety review) that those manufacturers had voluntarily stopped producing and selling these products for business reasons unrelated to safety.

FDA indicated that it will continue to test foods from the general food supply this year and next to accurately estimate U.S. consumers’ exposure to PFAS from foods. This includes testing samples from the Total Diet Study (see more on this study here) as well as a survey of bottled water. The agency will also conduct additional seafood testing. If the testing supports an FDA finding of a health concern relating to a particular food based on PFAS exposure, FDA has indicated it will take action.

As we have discussed here and here, several states have laws regulating PFAS exposure from food packaging products that are in place or moving rapidly through legislatures. Please continue to watch this space as “forever chemicals” continue to consume ever greater attention from regulators.

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California Legislation Seeks to Ban PFAS in Consumer Products Effective 2030 https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/california-legislation-seeks-to-ban-pfas-in-consumer-products-effective-2030 https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/california-legislation-seeks-to-ban-pfas-in-consumer-products-effective-2030 Tue, 27 Feb 2024 13:55:00 -0500 California’s extensive regulatory approach to per- and polyfluoroalkyl substances (“PFAS”) is poised to take a dramatic step forward with a proposed ban on the “forever chemicals” in most consumer products. Following the adoption of similar bans in Maine and Minnesota, California state senator Nancy Skinner (D-Berkeley) introduced bill SB 903 to the state senate last Monday, which would prohibit the distribution, sale, or offering for sale of products containing “intentionally added” PFAS. While the bill does not introduce anything particularly innovative by way of PFAS bans in consumer goods, it does represent one of the most comprehensive instructions to a regulatory agency on how to effectuate such a ban.

The “Ending Forever Chemicals Act” (SB 903) builds on the Golden State’s existing efforts to restrict the use of PFAS in consumer goods. For example, AB 1817 and AB 2771 passed through the legislature easily and were both signed by Governor Gavin Newsom on September 29, 2022. These bills respectively prohibit the manufacturing, distribution, sale, or offering for sale of textile articles or cosmetic products containing PFAS beginning January 1, 2025.

SB 903 proposes to apply this prohibition to all “products,” which the bill defines as “an item manufactured, assembled, packaged, or otherwise prepared for sale in California, including, but not limited to, its components, sold or distributed for personal, residential, commercial, or industrial use, including for use in making other products.” It further defines “component” as “an identifiable ingredient, part, or piece of a product, regardless of whether the manufacturer of the product is the manufacturer of the component.” The prohibition would be effective January 1, 2030. Interestingly, the bill gives the California Department of Toxic Substances Control (“DTSC”) the authority to, via rulemaking, prohibit intentionally added PFAS in a product or product category before the 2030 effective date.

Like Maine and Minnesota’s ban of PFAS in consumer goods, California also creates exemptions for products where DTSC finds via rulemaking that the presence of PFAS in the consumer good constitutes a “currently unavoidable use” (“CUU”). To qualify, the bill authorizes DTSC to solicit petitions for individual products and product categories that may qualify for a CUU waiver. The Maine Department of Environmental Protection is accepting individual CUU proposals until this Friday, March 1, for products that may fit within the standard. Meanwhile, the comment period for the Minnesota Pollution Control Agency’s proposed definition of CUU also closes on March 1.

California’s bill would statutorily codify the requirements to satisfy a CUU at HSC, Division 104, Part 3, Chapter 18, 109030.2(a). A CUU would be found where:

  1. There are no safer alternatives to PFAS that are reasonably available.
  2. The function provided by PFAS in the product is necessary for the product to work.
  3. The use of PFAS in the product is critical for health, safety, or the functioning of society.

Note that the third criterion here is borrowed from the definition of “CUU” under Maine’s prohibition exemption at 38 M.R.S. § 1614.1.B.

SB 903 further outlines what CUU petitions must contain, and how DTSC must evaluate such petitions. This includes a requirement that all petitions be subject to public comment.

Moreover, the bill provides that CUU petitions expire five years after issuance. The bill authorizes DTSC to revoke petitions prior to expiration if it can determine that the information used to justify the issuance is no longer relevant. And, importantly, the bill requires manufacturers to renew determination petitions no later than six months prior to their expiration. DTSC must also publish an online list on their website of each determination of a CUU, its expiration date, and the products and uses exempt from the prohibition.

If DTSC has reason to believe that a product contains intentionally added PFAS in violation of the bill, SB 903 authorizes DTSC to require the manufacturer to test the product and send DTSC results demonstrating compliance. Violators would be subject to a civil penalty not to exceed $1,000 per day for each violation, with repeat violations raising that penalty to a $2,500 maximum. The bill also authorizes the judiciary to enjoin sale of violating products.

While California is not the first state to issue such a ban, and has indeed borrowed almost all of these provisions from Maine or Minnesota, SB 903 represents the most realized version of such a prohibition introduced to date. It provides robust language and demarcated instructions to DTSC on how to effectuate the ban and its numerous exemptions. It also allows public comment for individual CUU petitions and explains how the CUU exemption must be renewed over time.

The bill will likely gain support in the California legislature. The real question moving forward is whether Gov. Newsom, who has vetoed several PFAS prohibition bills (see here and here) in the past for vagueness and overreach surrounding applicability and enforcement, will be satisfied with the legislation.

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EPA Requires TRI Reporting of Small Concentrations of PFAS; Expands Supplier Notification for Lead and Other Chemicals of Concern https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/epa-requires-tri-reporting-of-small-concentrations-of-pfas-expands-supplier-notification-for-lead-and-other-chemicals-of-concern https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/epa-requires-tri-reporting-of-small-concentrations-of-pfas-expands-supplier-notification-for-lead-and-other-chemicals-of-concern Mon, 23 Oct 2023 00:00:00 -0400 Earlier today, the U.S. Environmental Protection Agency (“EPA”) finalized elimination of the de minimis exemption for reporting of per- and polyfluoroalkyl substances (“PFAS”) under the Toxic Release Inventory (“TRI”). EPA is officially designating PFAS as Chemicals of Special Concern, for which the de minimis exemption is not applicable and, therefore, tracking and reporting of small concentrations in mixtures and products used at facilities is required.

The de minimis exemption allows facilities to ignore negligible amounts of substances in chemical mixtures when present at concentrations below 1% (or 0.1% for carcinogens) in the materials they process or otherwise use in their manufacturing process. While PFAS are widely present in numerous products and chemical mixtures due to their heat-, water- and stain-resistant qualities, typically they are present at very low concentrations. As a result, as we have discussed previously, only a relatively small number of TRI reports for PFAS have been filed with the agency in recent years. Indeed, out of the 75,890 total entries reported to TRI for all chemicals in 2021 (from approximately 21,000 facilities), EPA received a mere 92 PFAS reporting forms on 46 different PFAS from 45 facilities. In contrast, there are approximately 650 PFAS are currently in commerce from about 120,000 facilities that involve merely the handling and/or potential release of PFAS.

The final rule also makes the de minimis exemption unavailable for purposes of supplier notification requirements to downstream facilities for all Chemicals of Special Concern, which in addition to PFAS includes a number of persistent, bioaccumulative and toxic (“PBT”) chemicals such as lead, mercury, and dioxins. EPA contends that the change will help “ensure that purchasers of mixtures and trade name products containing these chemicals are informed of their presence in mixtures and products they purchase.” Critics contend however, that this change – particularly for lead, which is naturally occurring and widely present in the environment and raw materials – will dramatically expand the universe of materials for which downstream facilities must track the usage, disposal, and lead content, adding millions of hours to the already labor-intensive reporting burden.

When EPA proposed to eliminate the de minimis exemption, the Agency received mixed feedback. EPA and several environmental organizations argue that the exemption is a “reporting loophole” allowing facilities to avoid reporting listed chemicals, thereby diminishing public trust, reducing transparency, and keeping community members in the dark about chemicals they believe to be hazardous to human health. Industry stakeholders, on the other hand, contend that the de minimis exemption makes the TRI program dramatically more workable by limiting the scope of substances for which reporting is required. Moreover, the exemption is pragmatic and tries to avoid forcing companies to hunt for information on miniscule amounts of substances present in trace quantities that ultimately pose little to no risk.

Interestingly, EPA’s decision to scale back the exemption to the TRI reporting requirement, and thus open the PFAS reporting floodgates, coincides with the Agency’s issuance of a final Toxic Substances Control Act (“TSCA”) rule that similarly requires companies to electronically disclose to EPA information on PFAS uses, production volumes, disposal, exposures, and hazards, dating all the way back to 2011. Together, these two rules will dramatically expand the amount of regulatory reporting industry will conduct related to PFAS.

The new TRI requirements apply starting with the 2024 reporting year (reports due July 1, 2025). A copy of the final rule is available here: Changes to Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications for Chemicals of Special Concern; Community Right-to-Know Toxic Chemical Release Reporting.”

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The Prop 65 Annual Conference: Notes from the Front 2023 … “Over-Warning” is Here to Stay https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/the-prop-65-annual-conference-notes-from-the-front-2023-over-warning-is-here-to-stay https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/the-prop-65-annual-conference-notes-from-the-front-2023-over-warning-is-here-to-stay Thu, 28 Sep 2023 12:57:00 -0400 (Virtually) Live from San Francisco … Kelley Green Law Blog was delighted again to attend last week’s terrific Prop 65 Clearinghouse 2023 Conference, the largest annual gathering of the movers and shakers in the world of California’s “Proposition 65," including state regulators and legislators, plaintiff enforcers, defense and corporate counsel, tox and risk assessment consultants, product manufacturers, trade associations, and environmental and public health NGOs. With over 200 attendees, the conference’s popularity reflects the broad reach of Prop 65, which affects any business that sells or has a product that is sold in California … in short, most consumer product manufacturers across the globe (particularly with the explosion of internet sales during the pandemic). As I have remarked in prior commentaries (2018, 2020, and 2021), the conference is valuable not only to gain insights into the latest trends, current developments, and future direction of the program, but also as a helpful reminder, for me certainly, of the role and motivations of the other stakeholders in the Prop 65 universe.

Following are some of those “insights," observations and other thoughts from the front lines of Prop 65.

This year, my attention turned heavily to the root causes of the widespread phenomenon known as “over-warning” – i.e., the practice of many businesses to provide a warning for a product out of an abundance of caution, even if one may not technically be necessary. As a result of over-warning, the marketplace (most noticeably in California but increasingly elsewhere as well) is saturated with warnings. Warnings appear on items throughout grocery store aisles, in parking garages and hotels, on restaurant menus, and all over items in “big box” stores. Naturally, consumers start to filter out and ignore such warnings as they become “white noise” in the background. Perhaps more importantly, the sea of unnecessary warnings drowns out the relatively small percentage of warnings that are appropriate and serve meaningful public health ends.

“Including the word ‘California’ on a Prop 65 warning is preferred [by businesses] because … Crazy California!”

My thoughts were struck by the title of one of the slides in the introductory “101” session of the conference: “Our Shared Goal: Public Health.” Great concept, truly, and hard to disagree with. But the statement presents a logical follow up question: Is Prop 65 the best way to achieve that goal of improved public health? I think the answer clearly is no. At minimum, Prop 65 provides incentives that only serve to sow confusion - and perhaps even nonchalance - about what is and is not safe. For example, it is not within a company’s expertise or ability to determine appropriate safe levels or to parse the complexities and ambiguities of toxicological data. And when the penalty is potentially so high - when even if you do a gold-plated risk assessment to demonstrate no warning is needed - you can still lose your case because of the uncertainties of the legal process (the burden of proof is on the business to prove any exposure was “safe,” plaintiffs can muddy the waters with their own experts and nitpick an assessment to raise doubts, and it is hard to predict how a given judge will rule). In short, the most rational option for a business often is to place a warning on your product, instead of taking on the task of making a “public health” determination on your own. Such determinations are not the province of individuals or companies and are best made by, well, the public through the application of publicly agreed upon policies (i.e., a regulatory process).

When the penalty that may be imposed – often by a private plaintiff group that is motivated by fee collection – is based on a moving or unknowable standard (an unknown “safe” level), Prop 65’s ask of a business is practically impossible. In such situations, of course, it makes sense to be overly cautious and put a warning on your product.

So, what is the solution? One thing that would greatly improve the system: California regulators (OEHHA) should establish safe harbor levels for all listed chemicals at the time of listing. Even if such a value may be an initial conservative estimate, having an approved “safe harbor” on the books for every chemical will provide some assurance to companies and minimize one of the most contentious and burdensome elements of the Prop 65 system. Providing such a default “safe harbor” value for every chemical would be one huge step towards minimizing “over-warning.”

Interestingly, a conference panel on the “over-warning” problem directly addressed this idea, with at least one panelist (a plaintiff attorney) noting that the lack of “safe harbor” levels for all chemicals and routes of exposure was “not a big issue.” While I respectfully disagree, there certainly are other, perhaps more effective, ideas to consider to minimize the proliferation of unnecessary warnings. From my perspective as defense counsel, the best idea I heard from the panel was to resurrect an idea from legislation proposed in 2015 that would provide a defense if a business had performed a prior exposure assessment for the product that indicated no warning was needed. While implementation would be tricky, as there could be arguments over whether such a risk assessment was consistent with established criteria, the availability of such a defense would serve the public health goals of Prop 65. Companies would be encouraged to look more seriously at the chemicals in their products and the potential for exposure, and minimize “over-warning” by providing more assurance that a determination that a warning is not needed would not be punished by a private enforcer that knows the burden of proof in court is on the company.

Without shifting the dynamics of the Prop 65 enforcement system – which greatly favor private plaintiffs and practically necessitate over-warning – there will be no reason for businesses to stop providing overly precautionary and unnecessary warnings.

Thanks for joining us at the conference and we hope to be broadcasting live and in person next year from the City by the Bay! As always, for the latest on Prop 65 stay tuned to Kelley Green Law Blog.

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CPSC Collecting Data on PFAS in Consumer Products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/cpsc-collecting-data-on-pfas-in-consumer-products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/cpsc-collecting-data-on-pfas-in-consumer-products Thu, 21 Sep 2023 14:32:00 -0400 The Consumer Product Safety Commission (CPSC) is initiating a wide-ranging data collection effort on the use and presence of per- and polyfluoroalkyl substances (PFAS) in consumer products. As detailed in a September 30 Federal Register Notice and Request for Information (“ROI”), CPSC is requesting public comments by November 30, 2023. The information could provide the basis for a future rulemaking that may restrict or ban PFAS in a broad swath of consumer products.

CPSC is looking for information not only on uses and the presence of PFAS, but also potential exposure and toxicological effects.

Use or Potential Uses of PFAS in Consumer Products

  • Definition of PFAS “including which chemical substances should be considered a [PFAS], which chemical substances should be excluded from consideration as a PFAS, and which PFAS are considered in commerce.” This is a critical element of the scope of any CPSC action and has been the subject of debate as states generally have taken a broad view of covered PFAS in their own product-specific regulations, notably including short- and long-chain PFAS. This approach captures thousands of PFAS formulations. While only a relatively small number of PFAS have been the subject of toxicological assessments, the precautionary approach assumes that all or most PFAS share common toxicological characteristics;
  • PFAS potentially used or present in consumer products or product categories;
  • Specific PFAS and products to prioritize for assessment; and
  • Products or materials that may be sources of PFAS, including for “intentional uses” (chemical identity and physical form, functional purpose, and measurements or estimates of levels and concentrations) and incidental occurrence (sources of contaminants, chemical identity and physical form, degradation of substances or materials in products to PFAS, and measurements or estimates of levels/concentration).

Potential Human Exposures to PFAS Associated with Consumer Products Use

  • Emissions data from indoor use of PFAS-containing products;
  • Migration of PFAS from products into saliva, gastrointestinal fluid, or skin;
  • Exposure and risk data, including contact exposures from direct use of consumer products and mediated exposures such as through emission of PFAS from products to surfaces, indoor dust, or indoor air;
  • Data related to specific exposure pathways from consumer product sources;
  • Data measurements, or estimates on PFAS intake, uptake, clearance, half-life, or occurrence in people;
  • Data on the relative source contribution of consumer product(s) or ingestion of indoor dust, or inhalation of indoor air compared with other relevant sources such as drinking water or food associated with estimates of aggregate exposures; and
  • “Highly exposed” populations that may use certain consumer products “for a greater than average magnitude, frequency, or duration based on habits, practices, and characteristics specific to that population group.”

Potential Adverse Human Health Effects

  • Reports and data on whether individual PFAS, subclasses, or categories of PFAS have potential for adverse human health effects; and
  • Any information on additional sources of data and other information that CPSC should consider not already included in the Docket, available here.

Consumer product manufacturers or retailers should monitor CPSC’s efforts and consider filing comments by the November 30 deadline to help shape a future rule making. In our experience, it is usually best to engage with a regulator early in the process rather than be forced to react later after the agency forms a policy position or proposal. Data can be submitted confidentially - or potentially through an association of companies - to minimize potential adverse public perception.

Given the prominence of PFAS on the regulatory agenda for numerous federal and state agencies, and the high level of media attention being paid to the issue, it is not surprising that CPSC is initiating action.

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Maine Seeks Feedback on Types of Food Packaging Subject to PFAS Prohibition and Availability of “Safer Alternatives” https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-seeks-feedback-on-types-of-food-packaging-subject-to-pfas-prohibition-and-availability-of-safer-alternatives-comments-requested-by-monday-august-21 https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-seeks-feedback-on-types-of-food-packaging-subject-to-pfas-prohibition-and-availability-of-safer-alternatives-comments-requested-by-monday-august-21 Wed, 16 Aug 2023 00:00:00 -0400 After years of back-and-forth, the Maine Department of the Environment (“MDEP”) is seeking comment (by this coming Monday) on a “concept draft” regulation identifying the types of food packaging that would fall under a 2019 state ban on intentionally added per- and polyfluoroalkyl substances (“PFAS”).

Maine’s 2019 Toxic Chemicals in Food Packaging Act, codified at MRS Title 32, Section 1733 (3-B), authorizes MDEP to prohibit a manufacturer, supplier or distributor from offering for sale “a food package to which PFAS have been intentionally introduced in any amount greater than an incidental presence.” Prior to imposing such a prohibition, MDEP must issue a determination that a “safer alternative” to the use of PFAS is available. “Safer alternatives” must be readily available in sufficient quantity and at a comparable cost, and perform as well or better than PFAS in the specific food packaging application.

Relying on two assessments by Washington State’s Department of Ecology (the first in May 2021 and the second in May 2022), MDEP concludes that “safer alternatives” to the use of PFAS are available for the nine food packaging applications it received.

Specifically, the prohibition would apply to food packaging:

• Intended for direct food contact (short-term storage or to hold freshly prepared food);

• Comprised in substantial part of paper, paperboard or other materials “originally derived from plant fibers which are intended for short-term storage or to hold freshly prepared food”;

• To which PFAS have been intentionally introduced in any amount greater than an incidental presence; and

• In one of the following categories:

  1. Bags and sleeves: containers made from flexible material that can be folded flat and are typically used to transport food from a foodservice establishment. Sleeves include sealed-end bags referred to as pinch-bottom bags.
  2. Bowls: an open-topped container with a wide rim opening and a bottom that allows spooning of food. These containers are typically designed to hold foods for serving that have a substantial liquid component; this includes portion cups.
  3. Closed containers: a container that encloses food on all sides, with interlocking pieces or overlapping walls which hold the container closed for transport. Examples include clamshells, food pails, bakery boxes, and deli containers.
  4. Flat serviceware: shallow, flat-bottomed containers with large surface areas used for serving and transporting food which have one large surface or multiple compartments to separate food items during food service. Examples include, but are not limited to, trays, cafeteria-style trays, and plates.
  5. Food boats: a type of tray with tall, lipped edges and no compartments. Examples include, but are not limited to, food service containers for fried clams and lobster rolls. (Very Maine)
  6. Open-top containers: containers that enclose food on all but one side and are designed to hold food for serving or transportation. Examples include, but are not limited to, paper cones, cups, bowls, and food boats.
  7. Pizza boxes: a folded box used for serving, holding, or transporting various sizes of pizza or calzones.
  8. Plates: flat serviceware, whether single or with multiple compartments, used for serving or holding food items during food service.
  9. Wraps and liners: sheets used to wrap food for food service or create a lining inside other serviceware to act as an additional barrier.

The regulation would exempt manufacturers that have less than $1,000,000,000 of total annual national sales of food and beverage products.

MDEP is accepting public comment through August 21, 2023 on the draft and anticipates formally proposing the regulation later this year.

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Washington State Adopts Restrictions and Reporting Requirements for PFAS, Flame Retardants, Phthalates and Bisphenols in Wide Range of Consumer Products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/washington-state-adopts-restrictions-and-reporting-requirements-for-pfas-flame-retardants-phthalates-and-bisphenols-in-wide-range-of-consumer-products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/washington-state-adopts-restrictions-and-reporting-requirements-for-pfas-flame-retardants-phthalates-and-bisphenols-in-wide-range-of-consumer-products Thu, 29 Jun 2023 07:05:00 -0400 Joining the ranks of California, Minnesota, Maine, and New York, Washington state has officially finalized a ban on the manufacture, sale, and distribution of a variety of products containing per- and polyfluoroalkyl substances (“PFAS”), as well as several other “high profile” chemicals of concern, including flame retardants, phthalates, and bisphenols.

The rule was published by Washington’s Department of Ecology (“WDE”) on May 31, pursuant to the state’s Safer Products for Washington (“SPW”) chemical safety law that passed in 2019. The SPW charged WDE with identifying priority chemicals and making regulatory determinations to limit their uses in various categories of consumer products. Priority chemicals WDE determined to lack alternatives for their respective consumer products are instead subject to reporting requirements. The draft rule was originally promulgated in December of last year.

Specifically, the rule prohibits manufacture, sale, and distribution of the following products with intentionally added PFAS:

  • Aftermarket stain- and water-resistance treatments
    • Effective January 1, 2025
  • Carpets and rugs
    • Effective January 1, 2025
  • Leather and textile furniture and furnishings intended for indoor use
    • Effective January 1, 2026
  • Leather and textile furniture and furnishings intended for outdoor use
    • Because WDE determined that there are no chemical alternatives for these consumer goods, they shall instead be subject only to the reporting requirement.
    • Notification will be due to WDE by January 31, 2025


Interestingly, the regulation includes a novel provision that “presumes the detection of total fluorine indicates the intentional addition of PFAS.” This presumption is rebuttable upon a showing that PFAS were not intentionally added to the product. Notably, fluorine may be detected in some products due to residual or trace contaminant levels of PFAS that are thought to be widespread in the water supply, soil, and in recycled plastics and other materials.

Outside of PFAS, the regulation similarly prohibits the manufacture, sale and distribution of other specified consumer products with non-PFAS priority chemicals. Those priority chemicals and specified products are:

  • Ortho-phthalates
    • Fragrances in beauty products and personal care products
      • Effective January 1, 2025
    • Vinyl flooring
      • Effective January 1, 2025
  • Organohalogen flame retardants
    • Electric and electronic products with plastic external enclosures, intended for indoor use
      • Effective January 1, 2027 or 2028, depending on the product.
    • Electric and electronic products with plastic external enclosures, intended for outdoor use
      • Because WDE determined that there are no chemical alternatives for these consumer goods, they shall instead be subject only to the reporting requirement.
      • Notification will be due to WDE by January 31, 2025
  • Flame retardants
    • Covered wall padding made from polyurethane foam
      • Because WDE determined that there are no chemical alternatives for these consumer goods, they shall instead be subject only to the reporting requirement.
      • Notification will be due to WDE by January 31, 2025
    • Other recreational products made from polyurethane foam
      • Effective January 1, 2025
  • Alkylphenol ethoxylates
    • Laundry detergent
      • Effective January 1, 2025
  • Bisphenols
    • Drink cans
      • Effective January 1, 2025
    • Food cans
      • Because WDE determined that there are no chemical alternatives for these consumer goods, they shall instead be subject only to the reporting requirement.
      • Notification will be due to WDE by January 31, 2025
    • Thermal paper
      • Effective January 1, 2026


Where prohibitions are not feasible because of a lack of alternatives, reporting is required. The reporting notification for each priority consumer product is due one year from the effective date. They must include the CAS RN of the priority chemical that is intentionally added, the product category or categories that contain the priority chemical, the product component within the product category that contains the priority chemical, a description of the function of the priority chemical, and the concentration range of each intentionally added priority chemical in each product component in each product category.

The new regulations allow manufacturers, sellers and distributors to apply for exemptions to all of the abovementioned prohibitions, and WDE will evaluate exemptions on a case-by-case basis. In considering exemptions, WDE considers the priority chemical’s functional necessity, feasibility of legal compliance, potential alternatives (or the lack thereof), and unforeseen events and circumstances limiting the availability of alternatives.

First-time violators could be subject to civil penalties upwards of $5,000 per violation. Repeat violators are subject to penalties up to $10,000 per violation.

Interestingly, the rule includes language that seeks to avoid future federal preemption of Washington’s new ban and reporting requirements. In particular, the legislation anticipates possible regulation both by the U.S. Environmental Protection Agency (“EPA”) under the Toxic Substances Control Act (“TSCA”) and the Consumer Product Safety Commission (“CPSC”) under the Consumer Product Safety Act (“CPSA”) and/or the Federal Hazardous Substances Act (“FHSA”). TSCA authorizes the EPA to block state-level chemical rules by either issuing federal regulations for the same uses or through a finding establishing the relevant uses of the chemical present no “unreasonable risk” and thus do not require restriction.

It appears WDE sought to sidestep preemption by including provisions in the final rule that transition the program’s outright bans into preemption-immunized reporting requirements should the federal government regulate under TSCA. The final rule extends this language to specified CPSC and FHSA authorities as well.

Though WDE is certainly innovative in their preemption theory, their prohibition and reporting language mirrors the regulatory language employed by other states, including California, New York and Colorado. This language, combined with recent draft legislative language from the Northeast Waste Management Officials’ Association, seem to demonstrate that states are increasingly interested in collaborating with their neighbors to create a consistent, unified regulatory landscape that broadly governs PFAS and other chemicals.

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Draft Model State PFAS Legislation: A More Holistic Approach To Regulating "Forever Chemicals" in Consumer Products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/draft-model-state-pfas-legislation-a-more-holistic-approach-to-regulating-forever-chemicals-in-consumer-products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/draft-model-state-pfas-legislation-a-more-holistic-approach-to-regulating-forever-chemicals-in-consumer-products Mon, 22 May 2023 12:29:15 -0400 A recent Kelley Drye client advisory summarizes important new draft model state legislation that embodies an expansive approach to the regulation of per- and polyfluoroalkyl substances (PFAS) in consumer products. Crafted by the Northeast Waste Management Officials’ Association, Inc. (NEWMOA) and released earlier this month, the Draft PFAS Prevention Model Act (Draft Model) offers a menu of policy options for state legislatures to address potential PFAS contamination and exposure from consumer products. Most notably, the Draft Model includes 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 a new multi-jurisdictional “clearinghouse” to assist state environmental agencies with compliance and enforcement of the act.

The Draft Model reflects a move by states towards a more holistic approach to the regulation of PFAS in products. In recent months, states are trending from product-specific bans (such as for food packaging, cosmetics, textile treatments, cookware, carpets, furniture, etc.) to broad-based bans with limited exceptions, and, increasingly, reporting and labeling requirements (such as in Maine). The Draft Model take this trend a step (or two) further with the groundbreaking "clearinghouse" proposal, which would

maintain a database of all products containing PFAS, including PFAS-added products; a file on all exemptions granted by the participating jurisdictions; a file on alternative labeling plans; and a file of all the manufacturers’ reports on the effectiveness of their collection systems.

Moreover, the Draft Model introduces "end-of-life" EPR requirements into the PFAS regulatory universe.

NEWMOA is taking comments on the Draft Model until June 29.

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Maine Readies Proposed Rule on PFAS in Food Packaging https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-readies-proposed-rule-on-pfas-in-food-packaging https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-readies-proposed-rule-on-pfas-in-food-packaging Thu, 04 May 2023 14:03:28 -0400 The Maine Department of the Environment (DEP) plans to propose a long-awaited rule later this year aimed at eliminating per- and polyfluoroalkyl substances (PFAS) in food packaging. The proposed rulemaking was announced to state lawmakers by a DEP representative at a legislative hearing in late April, which also included discussions on a slew of recent proposals to amend Maine’s landmark 2021 law to ban PFAS in most other consumer products.

In 2019, Maine's Toxic Chemicals in Food Packaging Act, in addition to banning phthalates in food packaging by 2022, authorized DEP to pursue a similar ban for PFAS. Before adopting such a ban, the law requires DEP to evaluate the cost and availability of PFAS-free food packaging substitutes. The Department has made several attempts to collect information on PFAS-free substitutes in recent years, but, according to DEP, has not as yet received meaningful industry input. The planned rulemaking will build off a 2022 Washington state report on PFAS-free packaging substitutes and seek formal public comment on the feasibility of a ban.

The announcement comes several months after DEP changed course on whether manufacturers and distributors of PFAS-containing food packaging were subject to the 2021 law requiring reporting on PFAS-containing products by January 1 of this year. Originally, the Department planned to include food packaging within the reporting requirement, but in December decided that the 2019 law provided an exemption.

Meanwhile, DEP is taking comment until May 19 on a proposed rule to clarify implementation of the 2021 law's reporting requirements. A final rule is expected this summer. Maine is the first state to adopt a broad program to report on uses of PFAS in products and other states are watching closely (e.g., California, where the governor recently vetoed a reporting program as premature, and Minnesota, which is set to adopt a program similar to Maine).

In addition, the Maine legislature is considering five different bills that would amend the 2021 law. These bills would redefine the types of PFAS covered by the law, exempt businesses of 10 employees or less, and extend by up to one year the reporting deadlines for manufacturers and users of PFAS. Further coverage of these bills is available here.

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Minnesota Considering Extensive Reporting Requirements and Ban on PFAS in Consumer Products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/minnesota-considering-extensive-reporting-requirements-and-ban-on-pfas-in-consumer-products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/minnesota-considering-extensive-reporting-requirements-and-ban-on-pfas-in-consumer-products Fri, 28 Apr 2023 06:30:00 -0400 Last week, the Minnesota House passed the state’s largest-ever environmental and natural resources funding bill, including a ban on per- and polyfluoroalkyl substances (“PFAS”) in many consumer products beginning in 2025, with a ban on most such applications in 2032. If passed in the Senate and signed by the Governor, The Gopher State would be the second state, after Maine, to impose near-total restrictions on PFAS in consumer products.

HF2310 builds on previous state legislation that never was voted upon. Specifically, the Minnesota Senate introduced SF834 in January earlier this year, which provided for softer PFAS regulations than HF2310. Meanwhile in the Minnesota House, HF1000 also was discussed, but never voted upon. It too would have provided more tempered restrictions on PFAS.

Now paired with an omnibus bill that includes $670 million in funding to various Minnesota agencies, HF2310 would prohibit the sale, offering for sale, or distribution for sale of a wide range of consumer products containing intentionally added PFAS. The following products would be prohibited from containing intentionally added PFAS by 2025: carpets and rugs, cleaning products, cookware, cosmetics, dental floss, fabric treatments, juvenile products, menstruation products, textile furnishings, ski wax, and upholstered furniture.

Additionally, manufacturers of all other products containing PFAS will be required to report their use of these chemicals to the Minnesota Pollution Control Agency by January 1, 2026. A broader ban on the use of PFAS in products would go into effect on January 1, 2032, with exemptions for “unavoidable use” to be determined by the Minnesota Pollution Control Agency based on submitted use data in accordance with an upcoming rulemaking.

The bill echoes legislation adopted by Maine in 2021, which banned PFAS in textiles, carpets and rugs as of January 2023, required manufacturers of other PFAS-containing products to report their PFAS uses by that same date, and imposed a ban on PFAS in most products by 2030. Maine’s Department of Environmental Protection acknowledged last year that a rule would not be in place until later this year, even though businesses were still required to begin reporting by this past January 1. Interestingly, Maine regulators have granted hundreds of company and group-specific extensions on the reporting requirements, despite the Department still working on crafting implementing rules.

HF2310 passed by a vote of 69-59, and has since been passed on to the Minnesota Senate for their review.

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Maine Reexamines PFAS Ban and Reporting Regulations https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-reexamines-pfas-ban-and-reporting-regulations https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-reexamines-pfas-ban-and-reporting-regulations Wed, 26 Apr 2023 12:32:55 -0400 “First movers” in a regulatory field often need to recalibrate their approach. Maine is no exception as it seeks to implement the broadest reporting and use ban in the country addressing per- and polyfluoroalkyl substances (“PFAS”) chemicals in consumer products. With other states watching their experiment carefully, Maine’s legislature and Department of Environmental Protection (“MDEP”) are considering significant adjustments to the ground-breaking program.

Last August, the Maine legislature introduced broad and sweeping restrictions on a range of PFAS-containing products, representing the most aggressive state action to date against the so-called “forever chemicals.” In effect, the law would ban PFAS in most products in the state by 2030. Specifically, the law mandates that on January 1, 2030, “a person may not sell, offer for sale or distribute for sale” products where PFAS have been “intentionally added,” except in cases of “unavoidable use.” The law also required companies doing business in the state to begin reporting on the presence of PFAS in their products as of January 1, 2023.

In February, MDEP announced a highly anticipated proposed rule to provide not only additional guidance on the reporting requirements, but also seeking to define the magic words “intentionally added” and “unavoidable use” which govern the scope of the legislation and 2030 ban. MDEP proposed to define “intentionally added” to include PFAS that “provide a specific characteristic, appearance, or quality or to perform a specific function, as well as “any degradation byproducts of PFAS serving a functional purpose or technical effect within the product or its components.” “Intentionally added” would not include PFAS present in the final product as a contaminant.

The proposal also would restrict “currently unavoidable uses” to PFAS applications “that the Department has determined by rulemaking to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” In short, the “unavoidable use” concept would not be up to the product manufacturer to determine but would require future MDEP rulemakings to dole out exemptions.

Now, at a public hearing last week, MDEP announced that, while it intends to proceed with the current proposed rulemaking, the agency is anticipating the need for further revisions due to pending legislation. Five different PFAS bills have been introduced in both chambers of Maine’s legislature, each of which could prompt MDEP to revisit the regulatory process and overhaul the pending rule, which is already months behind the January 1st deadline that required companies to begin reporting.

The pending bills, taken as a whole, would redefine the types of PFAS covered by the law, exempt businesses of 10 employees or less, and extend by up to one year the reporting deadlines for manufacturers and users of PFAS. The five currently pending bills are:

  • LD 217, HP0138: An Act to Support Manufacturers Whose Products Contain Perfluoroalkyl and Polyfluoroalkyl Substances - Rep. Dick Campbell of Orrington
  • LD 304, HP0202: An Act to Establish Statewide Standards for Perfluoroalkyl and Polyfluoroalkyl Substances - Rep. Benjamin Hymes of Waldo
  • LD 1214, SP0495: An Act to Clarify the Laws to Combat Perfluoroalkyl and Polyfluoroalkyl Substances Contamination - Sen. Joseph Baldacci of Penobscot
  • LD 1273, SP0510: An Act to Exempt Some Businesses from Certain Laws Relating to Perfluoroalkyl and Polyfluoroalkyl Substances in Accordance with the Size of the Business - Sen. Trey Stewart of Aroostook
  • LD 1537, SP0610: An Act to Amend the Laws Relating to the Prevention of Perfluoroalkyl and Polyfluoroalkyl Substances Pollution and to Provide Additional Funding - Sen. Henry Ingwersen of York

Comments on Maine’s proposed regulations are due May 19, 2023.

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New York Expands PFAS Apparel Ban https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/new-york-expands-pfas-apparel-ban https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/new-york-expands-pfas-apparel-ban Tue, 21 Mar 2023 15:01:58 -0400 The New York state legislature has passed a bill (S.1322/A.994) to modify previous legislation that largely bans per- and polyfluoroalkyl substances (“PFAS”) in clothing and apparel by 2025 that was signed into law by Governor Kathy Hochul in the final hours of 2022.

In agreeing to the ban, Governor Hochul called upon the legislature to amend the law to provide clarity on several specifics, including the scope of products covered, timing and enforcement mechanisms.

Accordingly, the amended legislation expands the scope of the ban to capture the use of intentionally added PFAS in a broader range of apparel, including clothing items intended for “regular wear or formal occasions including, but not limited to, undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, vests, dancewear, suits, saris, scarves, tops, leggings, leisurewear, formal wear,” outdoor apparel and children’s clothes, including onesies, bibs and diapers. Previously, outdoor apparel and outerwear had been exempt.

Notably, the bill does not include professional uniforms worn to protect the wearer from health or environmental hazards. However, PFAS would be banned in high-performance outerwear for severe wet conditions starting in 2028.

The new bill also adds penalties and creates timelines for banning the use of PFAS in most clothing. In terms of penalties, the bill requires the state Department of Environmental Conservation to set a threshold for PFAS, including unintentionally added chemicals, which would take effect by 2027. Initial violations would be subject to a civil penalty of up to $1,000 a day, and continued violations would be subject to a penalty of up to $2,500 per day.

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Latest TRI Data Show Modest Increase in PFAS Reporting https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/latest-tri-data-show-modest-increase-in-pfas-reporting https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/latest-tri-data-show-modest-increase-in-pfas-reporting Mon, 20 Mar 2023 13:50:06 -0400 Last week, EPA released the Agency's 2021 Toxic Release Inventory (“TRI”) Analysis showing that only 44 facilities submitted 89 forms on their per- and polyfluoroalkyl (“PFAS”) releases and waste management, a marginal increase over the 38 facilities that submitted such data in 2020. The TRI Analysis comes on the heels of EPA’s proposed (and highly anticipated) rule to eliminate the use of the de minimis exemption for reporting on PFAS under the TRI program, the comment period for which expired on February 3rd. The de minimis exemption, a long-standing TRI policy, allows facilities to ignore minimal amounts of substances in chemical mixtures when present at concentrations below 1% (or 0.1% for carcinogens).

According to the TRI Analysis, in 2021, 44 facilities reported managing 1.3 million pounds of PFAS as waste, compared to 800,000 pounds reported in 2020. While most such waste is recycled, facilities reported 108,000 pounds in releases of PFAS containing waste, significantly more than the roughly 20,000 pounds of releases reported in 2020. Unsurprisingly, the hazardous waste management sector accounted for nearly 80 percent of these releases, primarily through regulated landfills, and the boost is largely attributable to one facility. Direct releases to the environment are a fraction of the reported numbers.

The spike in these numbers is likely attributable to updated reporting requirements required by the 2020 National Defense Authorization Act, which mandated PFAS reporting starting in 2021 (for the 2020 reporting year). Specifically, new reporting requirements under this Act included the addition of four PFAS to the list of 172 PFAS reported for 2020. EPA admits in the Analysis that the increase in PFAS managed as waste in 2021 is primarily due to reporting for one PFAS, perfluorooctyl oxide, one of the four chemicals added to the list for 2021.

In the Agency’s Press Release, EPA opines that

“Because PFAS are used at low concentrations in many products, this rule [to eliminate the de minimis exemption] would ensure covered industry sectors and federal facilities that make or use TRI-listed PFAS will no longer be able to rely on the de minimis exemption to avoid disclosing their PFAS releases and other waste management quantities for these chemicals.”

It certainly appears that EPA is poised to eliminate the exemption in its anticipated final rulemaking on the matter.

Many industry stakeholders, however, emphasize that the de minimis exemption is necessary to make the TRI program more workable in practice by limiting the need for reporting entities to hunt for information on miniscule amounts of substances that generally pose little to no risk.

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New York Joins the Growing List of States with Bans on PFAS in Apparel https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/new-york-joins-the-growing-list-of-states-with-bans-on-pfas-in-apparel https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/new-york-joins-the-growing-list-of-states-with-bans-on-pfas-in-apparel Tue, 07 Mar 2023 12:45:51 -0500 Following in California’s footsteps, New York has recently joined a litany of States banning per- and polyfluoroalkyl substances (“PFAS”) in clothing and apparel.

New York Governor Kathy Hochul signed the bill into law on December 30, 2022, which will officially eliminate the use of PFAS in all apparel by December 31, 2023. The law follows on the heels of New York’s PFAS ban in food packaging that became effective on December 31, 2022.

In September of last year, California enacted a similar ban on PFAS in clothing. The Golden State’s law prohibits the distribution, sale, or offering for sale of any new textiles that contain PFAS beginning on January 1, 2025. While New York clearly drew upon the California law, and similar laws in other states, the New York law is less detailed. For example, while California prescribes a compliance process by which manufacturers are to provide retailers and distributors with a "certificate of compliance," no such provision is included in New York. Similarly, California also includes a provision, absent in New York, requiring the use of the "least toxic alternative" when substituting for PFAS.

Perhaps the most interesting difference in the two state laws, however, is that while both ban the intentional use of PFAS in apparel (i.e., chemicals with an intended function or technical effect in the product), California also attempts to address residual PFAS levels by including a ban on total organic fluorine content above 100 ppm by 2025 and 50 ppm by 2027.

“Other state are considering action on PFAS in garments, including Washington and California, which will address the problem via their existing regulatory processes. States such as Vermont and Massachusetts have pending legislation that could effect the use of PFAS in garments.”

Notably, the New York law does not apply to “professional uniforms or outerwear intended for extreme conditions.” Presumably, further guidance will be forthcoming to further define this exemption, which is intended to address both severe wet-weather and dangerous fire fighting or similar conditions. For instance, PFAS serve a dual function in apparel worn by firefighters: PFAS aid in flame-suppression foams and fire-suppressive clothing, and they are water resistant, meaning the material does not become soaked and heavy during use.

The bill eliminates the use of PFAS in all apparel by December 31, 2023.

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EU Proposes Ban on PFAS in Most Products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/eu-proposes-ban-on-pfas-in-most-products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/eu-proposes-ban-on-pfas-in-most-products Fri, 10 Feb 2023 17:45:45 -0500 The European Union (“EU”) is preparing to adopt the world’s most sweeping ban on per- and poly-fluoroalkyl substances (“PFAS”), including with respect to the presence of the so-called “forever substances” in practically all consumer and commercial products.

On February 7, the EU Chemical Agency (“ECHA”) issued the plan – known as the “Universal Restriction Proposal” – that would ban the use of PFAS in many of the most common applications (such as clothing, food packaging, cookware, and cosmetics) within 18 months of enactment. For products where PFAS-free alternatives are known but not widely available (e.g., technical textiles for medical applications, industrial food and feed production, hard chrome plating), a five-year phase-in ban would apply. For products where alternatives are currently unknown (e.g., professional protective apparel, certain specialty textiles, laboratory refrigerants), the ban would be phased-in over 12 years. The ban would apply to imports as well as domestically-produced goods.

The proposed ban would apply to nearly 10,000 different PFAS chemical formulations, with few exceptions, and is intended to cover the vast majority of PFAS uses. The chemical scope of the restriction proposal is broadly defined as: “Any substance that contains at least one fully fluorinated methyl (CF3-) or methylene (-CF2-) carbon atom (without any H/Cl/Br/I attached to it).”

The proposal – which was crafted by Germany and the Netherlands with support from Norway, Sweden and Denmark, after the countries compiled a “dossier” reflecting several years of research – recommends that the chemicals be restricted under the EU’s Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”) regulation.

“This proposal is actually the broadest restriction proposal that has ever been prepared and submitted.”

- Frauke Averbeck, German Federal Institute of Occupational Safety and Health, February 7

Following release of the proposal, ECHA’s two scientific subdivisions, the Risk Assessment Committee (“RAC”) and the Socio-Economic Analysis Committee (“SEAC”), will now conduct their own scientific evaluation. This process usually takes about a year, but, given the complexity of the matter, some experts anticipate an even longer review period.

A six month public comment process (“open consultation” period in EU parlance) is scheduled to start on March 22. During this process, interested parties can submit comment on the proposed restrictions to ECHA, as well as provide information on the availability of PFAS-free alternatives or lack thereof. An online information session will be held April 5.

Once ECHA reviews the committees’ scientific evaluations and stakeholder comments, the agency will finalize recommendations to submit to the European Commission, which, together with the EU Member States, will then vote on the potential restriction. The proposal is expected to be issued as a final rule sometime in 2025, potentially going into effect in 2026 or 2027.

The proposed restrictions will have global ramifications. In addition to EU-based product manufacturers and end-users, imported products also are covered by the ban. Such a broad ban will necessitate careful supply chain communication and oversight to ensure that product components and raw materials do not contain banned PFAS. Such supply chain management can be particularly challenging given the widespread historical use of PFAS and their presence as impurities or residuals in a wide variety of recycled materials and other raw materials. Further, demand for PFAS-free alternatives is likely to become intense and lead to potential shortages of needed production inputs.

While the ban is not likely to come into force for several years, companies are advised to start planning now to evaluate the presence of PFAS in their products and throughout their supply chain, as well as to develop and secure PFAS-free alternatives.

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Comments Due Soon on EPA Proposed Rule to Eliminate De Minimis Exemption for PFAS Reporting under the Toxic Release Inventory Program https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/comments-due-soon-on-epa-proposed-rule-to-eliminate-de-minimis-exemption-for-pfas-reporting-under-the-toxic-release-inventory-program https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/comments-due-soon-on-epa-proposed-rule-to-eliminate-de-minimis-exemption-for-pfas-reporting-under-the-toxic-release-inventory-program Fri, 20 Jan 2023 18:41:11 -0500 Comments are due February 3rd on EPA’s proposed (and much anticipated) rule to eliminate use of the de minimis exemption for reporting on per- and poly-fluoroalkyl substances (“PFAS”) under the Toxic Release Inventory (“TRI”) program.

When the 2021 TRI data were published last year, those following the ever evolving world of PFAS were initially surprised to see such a small PFAS presence represented. Indeed, of the 75,890 total entries reported to TRI for all chemicals in 2021 (from nearly 21,000 facilities), EPA received merely 92 PFAS reporting forms on 46 different PFAS from 45 facilities. This information seems even more jarring considering that approximately 650 PFAS are currently in commerce (though only 172 are currently subject to TRI reporting) from about 120,000 facilities.

The reason for this gap was the vast employment of an aptly named “de minimis” exemption, a long-standing TRI policy that allows facilities to ignore amounts of substances in chemical mixtures when present at concentrations below 1% (or 0.1% for carcinogens). The Agency has signaled since 2020 that it planned to do away with the exemption for PFAS, and the December 5 proposal follows through on that pledge.

In announcing the rule, EPA asserted that it “would ensure that covered industry sectors and federal facilities that make or use TRI-listed PFAS will no longer be able to rely on the de minimis exemption to avoid disclosing their PFAS releases and other waste management quantities for these chemicals.”

By removing this reporting loophole, we’re advancing the work set out in the Agency’s PFAS Strategic Roadmap and ensuring that companies report information for even small concentrations of PFAS. We will make this information available to the public so EPA and other federal, state and local agencies can use it to help best protect health and the environment.

EPA Administrator Michael Regan

The Agency and several environmental organizations have argued in the past that the so-called “reporting loophole” of the de minimis exemption allows facilities to avoid reporting releases of potentially significant amounts of TRI-listed chemicals, thereby diminishing public trust, obfuscating transparency, and keeping community members in the dark about chemicals they believe to be hazardous to human health. The Sierra Club alongside other organizations, for example, have sued EPA claiming that the exemption is not statutorily permitted. The case, National PFAS Contamination Coalition, et al. v. EPA, is currently pending in the United States District Court for the District of Columbia.

However, as pointed out by the reporting community of industry stakeholders, the de minimis exemption helps make the TRI program more workable in practice by limiting the scope of substances for which reporting is required and not requiring companies to chase down information on miniscule amounts of substances present at trace quantities that generally pose little to no risk.

For certain chemicals of “special concern” – such as mercury, dioxins, lead, and other “persistent, bioaccumulative, and toxic” substances – EPA previously has eliminated availability of the exemption, as well as the TRI short-form (Form A) reporting option. The proposed rule would add PFAS to the category of chemicals of “special concern.”

In order to ensure that downstream users are informed of the presence of “special concern” chemicals in mixtures and products they purchase, the proposed rule also would make the exemption unavailable for supplier notification requirements.

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California Requires New Cookware Chemical Labeling Requirements by January 1st https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/2569 https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/2569 Tue, 29 Nov 2022 21:45:26 -0500 Cookware sold in California will be required to have chemical ingredient information disclosed on the product website by the new year. While part of a wave of legislation focused on per- and polyfluoroalkyl substances (“PFAS”), the California Safer Food Packaging & Cookware Act of 2021, which was signed into law by Governor Newsom in October 2021, requires cookware manufacturers to disclose the presence of thousands of chemicals in their products, starting on January 1, 2023. The legislation also restricts the types of “chemical-free” claims that companies can make in promoting their cookware products.

The Act creates two new requirements for cookware manufacturers. First, they must disclose the presence of “hazardous chemicals,” including PFAS, bisphenol A (“BPA”), and over 3,000 other substances included on the California Department of Toxic Substances (“DTSC”) Candidate Chemical list. The Act applies to cookware manufacturers "whose name appears on the product label, or person who the cookware is manufactured for or distributed by (as identified by the product label).” “Cookware” includes “durable houseware items that are used in homes and restaurants to prepare, dispense, or store food, foodstuffs, or beverages. ‘Cookware’ includes pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils.”

By January 1, 2023, cookware manufacturers must post on the internet website for the cookware product: (1) a list of all chemicals “intentionally added” to the cookware (i.e., chemicals that have a functional or technical effect in the product) that are also present on the DTSC Candidate Chemical list; (2) the names of the authoritative list or lists referenced by the DTSC; and (3) a link to the internet website for the authoritative list or lists.

By January 1, 2024, similar information must be disclosed on the product packaging, as well as third party retail websites where the product is sold. There is an exception to the on-product disclosure requirement if the surface area of the cookware cannot fit a product label of at least two square inches and the cookware does not have either (1) an exterior container or wrapper on which a product label can appear or be affixed; or (2) a tag or other attachment with information about the product attached to the cookware.

Second, the Act prohibits manufacturers from advertising that a product is “free” of a chemical when other chemicals from the same chemical class are present. For example, a pan labeled as “PFOA-free” would be non-compliant if it contains other PFAS, such as PTFE. While this is primarily targeted at PFAS claims, the ramifications extend to other classes of chemicals (such as phthalates).

Cookware manufacturers should promptly review the ingredients in their products to determine if any appear on the DTSC list and, if so, prepare the required website disclosure. Given the extent of the chemical list, it is likely that many cookware products will be subject to the disclosure requirements.

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California Bans PFAS "Forever Chemicals" in Clothing, Textiles, and Cosmetics https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/california-bans-pfas-forever-chemicals-in-clothing-textiles-and-cosmetics https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/california-bans-pfas-forever-chemicals-in-clothing-textiles-and-cosmetics Tue, 11 Oct 2022 13:01:06 -0400 California joined the growing list of states to ban products containing per- and polyfluoroalkyl substances (“PFAS”) when, on September 29th, Governor Newsom signed into law legislation prohibiting the so-called "forever chemicals" in apparel, textiles, and cosmetics. The ban goes into effect beginning in 2025, and applies to the sale, manufacture and distribution of new cosmetics and textile articles (defined to include apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths) that contain "intentionally added" PFAS.

For textiles, the law requires manufacturers to provide retailers and distributors with a certificate of compliance stating that the product does not contain any "regulated PFAS," which are defined as PFAS "that have a functional or technical effect in the product." Further, the ban applies to PFAS present in textile articles present above certain minimum thresholds, as measured by total organic fluorine content: 100 parts per million as of January 1, 2025, with a reduction to 50 parts per million in 2027.

The law also requires a manufacturer to use the "least toxic alternative" when replacing regulated PFAS in textile articles. The term "least toxic alternative" is not defined in the legislation but presumably envisions a process similar to the "Alternatives Analysis" required for manufacturers of products subject to the state's Safer Consumer Products (SCP) program.

Notably, the PFAS prohibition is delayed until 2028 for "outdoor apparel for severe wet conditions." Such products, however, must be clearly labeled as “Containing PFAS chemicals” starting January 1, 2025. Full exemptions from the ban are provided for “personal protective equipment” (PPE) and “clothing items for exclusive use by the United States military.” Carpets and rugs are excluded from the ban as they are currently regulated under the SCP program.

The cosmetics ban extends a previous California law prohibiting 13 specific PFAS chemicals to all of the thousands of different PFAS substances in existence. No minimum PFAS content threshold is provided in the law, which may present a challenge to companies seeking to demonstrate that PFAS have not been intentionally added to a cosmetics product and that any amount identified is from contamination in raw materials, water or other unknown sources.

While the California ban is among the most aggressive legal prohibitions related to PFAS in products, the scope of the ban does not go as far as recent legislation adopted in Maine, which applies to all products containing intentionally added PFAS (unless for "unavoidable uses" which have yet to be defined). The California prohibition, however, goes into effect much sooner (starting in 2025) than the 2030 ban in Maine. (Maine has banned PFAS in carpets and rugs as of 2023.)

Governor Newsom also declined to further extend California's PFAS regulations by vetoing legislation that would have required consumer product manufacturers to submit annual reports on intentionally added PFAS in all products and product components beginning in 2026. In 2021, Maine adopted a similar reporting requirement that goes into effect January 1, 2023.

With the final adoption of the California PFAS prohibitions, all eyes now turn to New York, where Governor Hochul is weighing signature of legislation passed earlier this year to ban intentionally added PFAS in apparel starting in 2024.

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Maine Makes a Bold Move in Banning Most PFAS-Containing Products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-makes-a-bold-move-in-banning-most-pfas-containing-products https://www.kelleydrye.com/viewpoints/blogs/kelley-green-law/maine-makes-a-bold-move-in-banning-most-pfas-containing-products Mon, 29 Aug 2022 16:12:08 -0400 Last month, the Maine legislature introduced broad and sweeping restrictions on a range of products containing per- and polyfluoroalkyl substances (“PFAS”). These restrictions are some of the most comprehensive in the country, and, in effect, would ban PFAS in almost all products in the state by 2030. Specifically, the law mandates that on January 1, 2030, “a person may not sell, offer for sale or distribute for sale” products where PFAS have been “intentionally added,” except in cases of “unavoidable use.” Though PFAS have faced heightened public and regulatory scrutiny in the last few years, an outright ban like this is the first of its kind. Unsurprisingly, environmentalists and industry-members are clashing on the merits of the restrictions, with the former heralding it as a guiding light for other states to follow, and the latter fearful that it is the latest contribution to a balkanized regulatory system that will paralyze industry and deprive consumers of essential goods.

The “unavoidable use” exception to the pending ban is the subject of a rulemaking process by the Maine Department of Environmental Protection (“DEP”) and awaits further detail. Depending on the nuances of this exception, the law could very well ban a vast range of products. Compliance for many companies is expected to be difficult, and given already strained supply chains, could result in certain products not being sold in the state altogether. Moreover, the law imposes a heavy administrative burden on the DEP, which will now be tasked with verifying compliance for a massive swath of products, ranging across fabrics, cleaning products, paints, fire-fighting foams, cookware, food packaging, food processing equipment, and cosmetics, among others.

A particularly notable criticism is that all PFAS are not the same. Indeed, there are over 9,000 types of PFAS (identified so far), each with their own unique chemical makeup and profiles. Maine’s bold stroke is therefore scientifically overbroad and will impose unnecessary burdens on many of the product manufacturers and retailers doing business in the state. Moreover, in a state that has ambitions of transitioning to more renewable energy sources, PFAS provide crucial insulation and physical, thermal, and chemical resistance to technologies vital to solar and wind energy.

Science driven and industry sensitive alternatives are certainly prevalent in sister states. In fact, states like California, Colorado, Connecticut, Hawaii, Maryland, Minnesota, New York, Oregon, Rhode Island, Vermont and Washington, have enacted less restrictive PFAS statutes than the total ban Maine proposes. Many of those states too, along with Georgia, Iowa, Massachusetts, Michigan, New Hampshire, New Jersey, North Carolina, Pennsylvania and Wisconsin all have proposed legislation regulating PFAS in some capacity.

That said, current scientific research suggests that exposure to high levels of certain PFAS may lead to adverse health outcomes. This, combined with their presence in various environmental media, consumer goods, and food product packaging, could make them a broad and slow-building threat to human health.

Given the sophistication and complexity behind PFAS regulation, painting with broad prohibitions like Maine’s is certainly bold. No other state in the union, even those with notoriously more rigid regulatory structures for environmental issues, have an outright and total ban on PFAS. A one-size-fits-all solution is simply impractical and overbroad, disrupting economies and industry while reducing consumer’s access to essential goods and services. Of course, when health is at stake, further investigation is warranted. This analysis can and should be conducted in a way that is congruous with the nation’s recovering supply chain and economic apparatus.

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