Keeping Up-to-Date on PFAS Regulations in Consumer Products

By Jessica Bernardini

PFAS (per- and poly- fluorinated alkyl substances) are everywhere, in our drinking water and all over the news. A serious concern for the health of humans and the environment, federal and state agencies are taking a proactive approach to identifying sources of PFAS and attempting to eliminate them from the everyday products with which we come in direct contact.

In general, the federal government’s current focus is on identifying sources of PFAS and regulating PFAS in drinking water. States meanwhile are increasingly working to eliminate the circulation of consumer products with intentionally added PFAS. To date, 12 states have enacted laws that ban or impose reporting or disclosure requirements for PFAS in products ranging from food packaging to textiles, cosmetics, cookware, baby products, carpets, rugs, and upholstered furniture. In 2023, dozens of new bills were introduced at the state level to address PFAS. Many were targeted at banning certain products containing intentionally added PFAS; however, only a handful were enacted. While each state’s laws differ, there is some continuity between them, specifically, the definition of PFAS (a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom) and the use of “intentionally” with regards to how the PFAS became present in the product in the first place.

Below is a brief overview of the state laws governing consumer products in Washington, Oregon, and California, along with an update on the latest rule at the Federal level.

Federal

• Effective November 11, 2023, the EPA finalized its PFAS reporting rules under the Toxic Substances Control Act. The federal rule requires manufacturers (including importers) of PFAS and PFAS-containing articles in any year since 2011, to electronically report information regarding PFAS use, production volume, disposal, exposure, and hazards. The reporting will create a dataset for EPA to better understand the extent to which PFAS are in use. Reporting is due 18 months from the effective date of the rule.

Washington

• Food Packaging: In 2018, Washington passed HB1694, banning plant-based food packaging with intentionally added PFAS. However, the law only went into effect once the Department of Ecology (“Ecology”) conducted its safer alternatives assessment in 2021.

In February 2023, Phase I of Washington’s PFAS food packaging ban went into effect, prohibiting the manufacture, sale, and distribution of packaging made of paper or other plant fiber with intentionally added PFAS. The list of items in Phase I included wraps, plates, food boats, and pizza boxes. Manufacturers that produce the listed food packaging must complete a certificate of compliance.

Phase II of the ban starts May 1, 2024. It expands the list of banned products with intentionally added PFAS to include bags, sleeves, bowls, flat serviceware, open-top containers, and closed containers. Ecology has developed guidance that assists manufacturers in determining if their product is regulated under Washington law.

Oregon

• Food Packaging: In 2023, Oregon passed Senate Bill 543, which prohibits selling, offering for sale, or distributing in (or into) Oregon foodware containers containing intentionally added PFAS. Based on the limited language in the law, SB 543 seems to apply only to foodware containers used in take-out or takeaway meals, as opposed to pre-packaged store bought food. Violators can be fined up to $500 per day for each day of violation. The statute authorizes the Environmental Quality Commission to adopt rules for the implementation of this law; as of the date of this post, there is no proposed rulemaking for implementing this law. SB543 becomes operative January 1, 2025.

California

• Food Packaging: California has been regulating the use of PFAS in food packaging since January 1, 2023. Assembly Bill 1200 banned the distribution, sale, or offer for sale in the state of plant fiber-based food packaging containing PFAS that are either intentionally added or present at levels exceeding 100 parts per million total organic fluorine. The law does not provide a specific enforcement mechanism. However, in October 2023, the California Attorney General (“AG”) issued an enforcement advisory letter warning that failure to comply with the law may constitute a violation of several California laws, under which the AG may bring enforcement action, seeking civil penalties, restitution, injunctive relief, or even criminal liability.

• Cosmetic Products: Beginning January 1, 2025, persons are prohibited from manufacturing, selling, delivering, holding, or offering for sale into commerce any cosmetic product that contains intentionally added PFAS. This law has wide application, as “cosmetic products” includes products “intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.”

• Textiles: Commencing January 1, 2025,the manufacture, distribution, or sale of new (not used) textile articles containing PFAS that are either intentionally added or present at levels exceeding 100 parts per million (“ppm”) total organic fluorine, is banned. The acceptable PFAS level decreases to 60 ppm on January 1, 2027. Additionally, by January 1, 2025, manufacturers will need to make available to their distributors certificates of compliance confirming that they meet California PFAS thresholds.

• Cookware: Beginning January 1, 2024, manufacturers of cookware that have intentionally added PFAS present in the handle of their products, or in any product surface that comes into contact with food, must include a label on the product listing the presence of PFAS.

If you believe your business uses PFAS in its manufacturing process or you distribute or sell products with intentionally added PFAS, you must be proactive in determining how to eliminate these products or find alternative chemicals. Laboratories are now able to conduct reliable testing to determine the presence of PFAS.

As states are becoming more aware of the extent to which consumers are exposed to PFAS, we can expect to see continued promulgation of PFAS laws. This will be an ongoing area of regulation to which businesses should stay apprised.

Please reach out to a member of our skilled Environmental and Natural Resources team to ensure your company complies with these new laws and regulations.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Environmental and Natural Resources group.