The regulation of PFAS, or per- and polyfluoroalkyl substances, in the United States has been a complex and evolving issue. Currently, there are no enforceable federal limits on any PFAS in drinking water, and some uses of PFAS are not regulated at all. However, there have been several recent developments in PFAS regulation at both the federal and state levels, driven in part by international regulation, advocacy groups, awareness campaigns, and other external and internal pressures.
One factor driving the push for stronger PFAS regulation has been a series of high-profile lawsuits involving the contamination of water supplies by PFAS-containing products. For example, in 2017, the chemical company 3M agreed to pay $850 million to settle a lawsuit brought by the state of Minnesota over the contamination of groundwater with PFAS-containing products. Similar lawsuits have been filed in other states, and the potential for further litigation has added to the pressure for stricter regulation.
Minnesota case study
With limited action from the federal government, many state governments have begun a push to limit PFAS production and use in their respective states, as well as leading the charge toward litigation against corporations for the cost of cleanup and remediation of PFAS. One leading state in this group is Minnesota, which in May of 2023 passed a new law (HF 2310, named Amara’s Law) that restricts all “unnecessary” PFAS uses by 2032, with specific category bans also closed out. The law would also require companies to disclose the presence of PFAS in any product by 2026, similar to another law that has been passed in Maine. The combined legislative package is considered by many to be the broadest PFAS restriction in the United States and resembles the new EU PFAS Restriction Proposal.
The new law builds on both existing state laws and combined approaches from several other states such as Washington and California, which have moved to ban PFAS in specific products or categories. The regulation is an effective ban on the entire group of PFAS, using a definition very similar to that proposed by the Organisation for Economic Cooperation and Development (OECD). Some of the categories specifically called out in the legislation for PFAS bans include cleaning ingredients, cookware, food packaging, cosmetics, textiles, and more. These specific use restrictions have various timelines, with the earliest expected to enter enforcement in 2025.
Although the legislation isn’t perfect, and the nebulous inclusion of a “necessary use” permission has some advocates concerned, the move has been largely applauded by leading health experts and NGOs. The regulation will also serve as another framework that other states may look towards as they adopt their legislation, with some states already moving to limit PFAS; including California, Maine, and New Jersey. Restrictions range from water level limits to banning PFAS in products such as textiles, cosmetics, food packaging, etc. These state-level regulations can have a significant impact on national companies that operate in multiple states, as they may be required to comply with different regulations in different locations.
Upcoming federal regulations on limiting PFAS
Although they lag significantly behind several states, the EPA has proposed several new regulations related to PFAS in recent years, including limits on the use of certain types of PFAS and requirements for testing and reporting. One of the most significant proposed regulations is a limit on the use of perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), two types of PFAS that have been widely used in a variety of products, including firefighting foams and nonstick cookware. The EPA has proposed a maximum contaminant level (MCL) of 4 parts per trillion (ppt) for PFOS and PFOA in drinking water, which would be the first federal limit on these chemicals.
In March of 2023, the EPA proposed the National Primary Drinking Water Regulation which sets enforceable levels for six different PFAS in drinking water (PFOA, PFOS, PFNA, GenX, PFHxS, and PFBS), which will help provide more support to many of the state-level limits that already exist and provide a framework for litigation. The EPA believes the finalization of this regulation should occur by the end of 2023.
The EPA has also proposed several other measures related to PFAS, including requirements for monitoring and reporting of PFAS releases, and the addition of PFAS to the list of toxic chemicals under the Superfund law, which would allow the EPA to take action to clean up contaminated sites.
More information on the PFAS Strategic roadmap can be found here.
Preparing for these regulations
Despite some of the limitations and open-ended questions that remain with these new legislations, the message to the industry from regulators is very clear: PFAS is no longer welcome in consumer products. Many companies are now scrambling to identify alternative chemistries and novel base materials, or are completely transitioning out of certain product categories entirely. The requirements for disclosure are also leading companies to discover PFAS in their products or supply chain without a clear understanding of how they got there and what the source might be. The pervasive nature of PFAS is leading many organizations to question the practicality and applicability of these regulations and raise attention to the unintended consequences of switching to alternative chemistries.
Anthesis offers our clients several services to help our clients understand PFAS risks in their supply chain, develop a roadmap for compliance with key regulations, and identify and evaluate novel alternative chemistries that can be used as a viable replacement for PFAS. The Anthesis team also understands the nuance of many applications of PFAS and can apply sound science to ensure that any action drives a positive impact, providing a balanced approach to avoid regrettable substitutions. Our team of experts can help organizations understand the practical implications of PFAS legislation on their business and prioritize actions to minimize impact on operations. Despite the challenges of these regulations, companies that act now can become industry leaders and push the transition towards more sustainable chemicals in consumer products.