PFAS in Manufactured Goods—A Review of the Regulatory Landscape

One of the most common questions we are asked regarding per- and polyfluoroalkyl substances (PFAS) is—”Is the government regulating their inclusion in manufactured goods?” Given that certain PFAS have been tied to adverse human health and ecological impacts, folks are rightly concerned. Are there labeling requirements? Are manufacturers still allowed to use PFAS in their production line, and can items that contain PFAS be imported into the US? This is a complicated topic, as there are thousands of PFAS, and only a small subset has been researched to date. Furthermore, the business landscape varies state by state and depending on what products are being manufactured or imported.

Let’s start with a look at federal regulations, and then review some states that are imposing additional regulations. For this discussion, we will focus on consumer goods and discuss aqueous film-forming foam (AFFF) product regulations in a future post.

Federal Regulatory Actions for PFAS in Manufactured Goods

The US Environmental Protection Agency (EPA) has taken a range of actions to address PFAS in manufactured goods, under the Toxic Substances Control Act (TSCA). These actions date back to 2002, and are still being built upon today, with the most recent update in March 2022. Large manufacturing companies have also been voluntarily phasing out certain longer-chain PFAS and some precursor compounds since at least 2000.

In 2002, the EPA published a Significant New Use Rule (SNUR) to require notification to the EPA before any future manufacturing or importing of 13 specific PFAS. This SNUR allowed for continuation of a few limited uses of these chemicals. Later, in 2002, the EPA published a second SNUR to require notification to the EPA before any future manufacturing and importing of 75 specific PFAS, with a few exceptions.

In 2006, the EPA initiated a PFAS Stewardship Program, where they invited the eight major companies in the PFAS production industry (the participating companies were Arkema, Asahi, BASF Corporation, Clariant, Daikin, 3M/Dyneon, DuPont, and Solvay Solexis) to join together to reduce use of perfluorooctanoic acid (PFOA), precursor chemicals that can break down to PFOA, and related chemicals by 2010, and to work towards elimination of these chemicals from emissions and products by 2015. These goals were eventually met; however, the use of PFAS has not been fully restricted to date, and products manufactured or imported prior to 2015 may still contain PFOA (and related chemicals).

In 2007, the EPA issued another SNUR that regulated the use of 183 PFAS that were generally considered as no longer manufactured, imported, or used in the US due to their suspected toxicity. This SNUR required a 90-day notification before commencing manufacture using any of the 183 PFAS or import of products containing these PFAS, which was effective only through the end of 2007.

In 2013, the EPA issued a rule to require carpet manufacturers to report all new uses of certain PFAS in carpeting, as it was being utilized to make carpets stain-resistant.

In 2015, the EPA proposed another SNUR that would require manufacturers and importers of PFOA and PFOA-related chemicals to notify the EPA at least 90 days prior to starting or resuming new uses of these chemicals in any products. This rule was proposed in order to give the EPA time to evaluate potential new uses of PFOA and if needed, prohibit or limit their use.

In 2016, TSCA was amended, and the EPA then worked to develop a supplemental SNUR regarding the import of certain longer-chain PFAS in specific categories. This SNUR was finalized in July 2020 and prohibits the import of certain longer-chain PFAS as part of surface coatings without an EPA review, and requires EPA notice and review before an entity can begin manufacturing with certain longer-chain PFAS.

In October 2021, the EPA developed a testing strategy that will require PFAS manufacturers to provide the agency with toxicity data so that EPA may consider additional future regulations. Most PFAS that are used in manufactured goods have very little toxicity information available; therefore, this EPA strategy is aimed at addressing that data gap.

Most recently, in March 2022 the EPA provided information to certain manufacturers and importers regarding the likelihood for PFAS to also be present in fluorinated high-density polyethylene (HDPE) containers and other similar plastics. This information was provided in the form of an open letter, and was conducted in line with EPA’s PFAS Strategic Roadmap goals. In addition, the EPA started the process of removing two PFAS from the EPA Safer Choice program, so as to protect consumers from products containing these chemicals.

State Regulatory Actions for PFAS in Manufactured Goods

Many states have started to apply more stringent regulations regarding PFAS in manufactured goods, based on concerns that the EPA is not moving fast enough and associated human health risks posed by PFAS. The following regulations are outlined by state, in as chronological an order as possible:

Washington: In 2018, Washington passed a law to ban the use of certain PFAS in food packaging, effective January 2022 which had been contingent on whether safer alternatives were identified by January 2020. Washington also passed a law in 2018 that manufacturers that sell personal protective equipment (PPE) must provide written notice if the PPE contains PFAS.

On March 31, 2022, Washington passed House Bill 1694, which requires its Department of Ecology to name certain PFAS -containing products including nonstick cookware, personal care products, cleaning agents, water-repellant clothing and gear, automotive products, and waxes and sealants for floors, skis, and cars, as well as PFAS-containing firefighting gear as “priority products” under the state’s Safer Products For Washington Initiative. This means that the state has accelerated the evaluation of these products for safer alternatives, with a deadline of 2024, bypassing its typical five year waiting period, with final regulations required by 2025.

New York: In January 2019, New York passed a similar law requiring written notice for PPE containing PFAS. In December 2020, New York also passed a law that bans the sale of food packaging containing certain PFAS, effective December 31, 2022.

New Hampshire: In September 2019, New Hampshire followed suit and also passed a law requiring written notice for PPE containing PFAS.

Maine: In June 2019, Maine passed a law banning the use of certain PFAS in food packaging, provided that safer alternatives are available.

California: In September 2020, California passed a law that beginning January 1, 2022, requires manufacturers that sells PPE provide written notification if it contains PFAS, similar to other states.

In October 2021, California also passed a law that will ban the use of certain PFAS in select consumer products, including car seats, cribs, bassinets, playmats, playpens, strollers, and disposable food packaging. The law stipulates that a manufacturer must use the least toxic alternative when replacing PFAS in a juvenile product (i.e., products designed for use by infants and children). This ban takes effect on July 1, 2023. In addition, the law requires warning labels on cookware made with certain PFAS, starting in 2024.

Vermont: In May 2021, Vermont passed a law that restricts the sale of consumer products that contain PFAS, and bans PFAS from some select products including food packaging, ski wax, children’s products, and carpets. In addition, the law requires that manufacturers that sell PPE must provide written notice if it contains PFAS.

Connecticut: In June 2021, Connecticut passed a law that prohibits the use of PFAS in food packaging, effective December 31, 2023.

It is likely that these and other states will continue to regulate the use of PFAS in manufactured products. If you reside in a state that does not currently regulate PFAS in manufactured goods, rest assured that the EPA is also taking action to reduce and eliminate these chemicals. If you have any questions or concerns, please feel free to contact us for additional information.

For further reading:
US EPA PFAS Website
US FDA PFAS Website
ITRC PFAS Guidance Document