States and Third-Party Certifiers Join Rush to Limit PFAS in Consumer & Commercial Products

Numerous states, along with organizations that certify the environmental sustainability of various products, are engaging in efforts to limit PFAS in common consumer and commercial use products. PFAS is the abbreviation commonly being used for per- and polyfluorinated alkyl substances, which have numerous beneficial and unique properties and have been widely used in formulations that can impart water and stain resistance in certain products. Many PFAS have substantial chemical longevity, and certain PFAS have been detected in the environment in and around the sites where they have been produced or used in the production of other materials. Health and environmental concerns regarding well-known PFAS (e.g., PFOA and PFOS) have prompted national and international efforts to eliminate their use.

Actions limiting use of specific PFAS in specialized commercial, industrial, and even public safety-related uses, such as firefighting foams, have been among legislative and regulatory actions taken up in recent years. Other PFAS are being effectively phased out in certain carpet treatments. Now, a growing number of state legislatures have enacted, or are considering, legislation prohibiting virtually all PFAS in an even wider range of products. Such states span the nation’s landscape from Maine to California, which are among more than a half-dozen states that have already enacted prohibitions on PFAS in food packaging materials. The list of states taking up even broader measures had been growing steadily in 2021; with many state legislatures opening new legislative sessions in January, it is likely the trend will continue during 2022. Increasingly, states are contemplating prohibiting the presence of PFAS in finished manufactured products (i.e., “articles”) commonly used in homes and in workplaces based on the presence (perhaps even at microscopic levels) of PFAS in such articles. These states include Maine (which will ban all products containing intentionally added PFAS as of January 1, 2030 unless the PFAS is deemed a “currently unavoidable use”), New York (which likewise is considering legislation that would prohibit the sale by 2030 of any product containing PFAS), and the State of Washington (which published its PFAS Chemical Action Plan in late 2021 and calls for regulatory actions to be taken by the Department of Ecology under existing laws with the intent to reduce or restrict PFAS in “priority consumer products” when alternatives are believed to be available). The department also released draft regulatory determinations for priority consumer products in late 2021 that would restrict PFAS in carpets and rugs, leather and textile furnishings, and aftermarket stain- and water-resistance treatments. Public comments are currently being solicited on those measures (which also concern priority products containing other substances).

Consistent with these state efforts, at least one well-established highly visible entity that acts as a third-party certifier of a consumer product’s environmental preferability—Green Seal—is also proposing to prohibit the presence of all PFAS in any Green Seal-certified formula for a cleaning or personal care product. It is reasonable to assume that other such certification bodies will follow suit.

Of course, the US Environmental Protection Agency has adopted and widely promoted a “whole of EPA” approach to examining and regulating PFAS. Virtually all of the statutory authorities overseen by EPA will be brought to bear, and will soon include new restrictions and limitations on specific PFAS if present in drinking water and new reporting and testing requirements to be imposed under the Toxic Substances Control Act (TSCA). While EPA has generally not sought to regulate consumer or commercial product chemical content in light of its broader environmental mission, this can no longer be considered the case. Even prior to the arrival of the Biden Administration, as we have previously discussed, EPA has used the Toxics Release Inventory requirements and TSCA to gather information on certain PFAS and even to require EPA’s permission before certain “long-chain” PFAS can be used in specific applications, including as a component in coatings on common commercial and consumer use products.

Actions by the states and third-party certifiers represent a significant challenge to the makers of consumer and commercial use products for many reasons. First, the term PFAS is being broadly defined and can include literally thousands of substances, many of which have never been tested to determine if they demonstrate adverse effects in health or environmental effects studies. A further complication is that an entity that assembles and distributes a complex product (such as an electronics product) is highly unlikely to know the chemical composition of each of the numerous component parts that are manufactured by a multitude of different independent suppliers having facilities around the globe. Thus, the presence of prohibited PFAS in a finished product could be completely unknown to the importer, distributor, and final retailer of the product, yet each of them could find themselves in violation of such new state requirements. At an even deeper level, it remains unclear whether the states considering or implementing such restrictions have adequate information to support the conclusion that the mere presence in a manufactured product of small quantities of a PFAS within the scope of the regulatory definition represents a practical threat to human health or the environment. At the end of the day, however, the bases for the state legislation and the technical support for such initiatives may become unimportant in light of stigma that will be generated concerning the products that become prohibited by these actions.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.