New Washington State Law Puts Regulation of PFAS in Products on the Fast Track

On March 31, Washington Governor Jay Inslee signed HB 1694 into law. The new law gives the Washington State Department of Ecology (DOE or the Department) the authority to address PFAS in “priority products” under the Safer Products for Washington program. This new law is just the latest of state initiatives enacted to address PFAS in consumer products.

The Washington Legislature enacted the Pollution Prevention for Healthy People and Puget Sound Act¹ in 2019. The Act directs DOE to implement a program to reduce priority chemicals in consumer products. DOE’s regulatory program to implement the 2019 law is called “Safer Products for Washington.” The program consists of a four-phase process occurring over the course of a five-year repeating cycle, which begins with identifying priority chemicals to be studied and considered for regulation and concludes with rulemaking. As part of the first iteration of the cyclical program, DOE has been evaluating whether to restrict the use of PFAS in carpet, textile and leather furnishings, and aftermarket stain and water resistance treatments. Washington State defines PFAS as “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom,” a broad definition that is being adopted in many state legislatures and that includes potentially thousands of substances. In its report sent to the Legislature in November 2021, Washington’s DOE recommended that the use of PFAS in these products be restricted.

Also, in November 2021, the Department released a final Per- and Polyfluoroalkyl Substances Chemical Action Plan (PFAS CAP) that sets forth recommended regulatory actions to address PFAS contamination in the environment and potential impacts to animal and human health. The CAP identified additional sources of and uses of PFAS - namely water-resistant clothing and gear, nonstick cookware and kitchen supplies, personal care products (including cosmetics and dental floss), cleaning agents, automotive products, floor waxes and sealants, ski waxes, and car waxes. Accordingly, DOE recommended that these products be considered for regulation in the second Safer Products cycle.

To further enhance the state’s already assertive program, HB 1694 allows the Department to identify any product named in the PFAS CAP as a “priority product” for purposes of the Safer Products program. In addition, the bill allows DOE to determine regulatory actions and adopt rules to implement those regulatory determinations without going through the standard four phase/five-year process. Consequently, HB 1694 requires the DOE to act on more PFAS products in the next few years. The new law is not a complete ban on the use of PFAS; instead, it requires the DOE to determine an initial set of regulatory actions for PFAS in CAP-identified products by June 1, 2024, and then adopt rules to implement the determinations by December 1, 2025. Nevertheless, regulation of PFAS in these products will certainly occur in the near future in the State of Washington, and it will be important to follow closely which PFAS chemicals and which products will be regulated under this new law.

Within the next few months, Washington will start developing regulations to restrict PFAS in carpet, textile and leather furnishings, and aftermarket stain and water resistance treatments. After that process is complete, the State will likely turn to the products identified in the PFAS CAP. With a statutory deadline of December 2025 to complete regulation of PFAS in those products, Washington State will be busy with its evaluation of PFAS in those products in 2023. Companies with an interest in the products identified in the PFAS CAP should carefully monitor what will be a flurry of PFAS related activity in the State of Washington in the next 2-3 years. 

© 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.