Why comprehensive state-level bans on PFAS in products are faltering


Jun. 25, 2024

Despite a wide array of bans on per- and polyfluoroalkyl substances (PFAS) progressing through state legislatures, even the planning around the implementation of some of these efforts has led the legislatures to amend or abandon the bans. This AgencyIQ analysis reviews several recent developments in state PFAS legislation and how it will inform future legislation.

Background: PFAS

  • Per- and polyfluoroalkyl substances (PFAS) are a large class of synthetic organic chemicals that have been used in a wide array of industrial, commercial, and consumer applications since the 1940’s. PFAS do not break down easily due to the strength of the carbon-fluorine bonds in the molecules, leading to the chemicals persisting in the environment, and in some cases to human bioaccumulation. There are a wide set of potential health issues potentially related to PFAS exposure, including reproductive and developmental effects as well as increased risk of some cancers.

Generally, how have states attempted to regulate PFAS?

  • States are attempting to regulate PFAS in a variety of ways, including via multiple in-state regulatory and legislative avenues. States like California have dually focused on large-scale bans of PFAS across consumer products, while also passing laws focused on specific product categories. Maine, one of the foremost regulators of PFAS at the state level, has gone back and forth with the number of disclosures required from manufacturers in addition to when a general ban on PFAS in products should occur. These state-level legislative actions all front-run the federal government, which has not yet passed any far-reaching laws focused on curbing the use of PFAS in products or other areas.

Case study: Maine

  • In July 2021, the Maine legislature passed LD 1503, An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution. The law requires that manufacturers of products with intentionally added PFAS report the presence of PFAS in those products to the Maine Department of Environmental Protection (MDEP) beginning January 1, 2023. In addition, the law prohibits the sale of carpets or fabric treatments containing PFAS as of January 1, 2023. In 2030, the law will ban the use of any product with intentionally added PFAS, unless the Maine legislature determines that the product currently serves an unavoidable use.
  • The statute defines PFAS as “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom,” which means any molecule with a carbon atom that has had all its hydrogen substituents replaced by fluorine atoms.
  • The term “manufacturer” is wide under the statute. The state defines a manufacturer as “the person that manufactures a product or whose brand name is affixed to the product.” For imports, this includes the importer or first domestic distributor of the product in Maine.
  • Manufacturers can submit extension requests to the Department if they do not know if their products or components contain PFAS or if they cannot provide sufficient information to meet the reporting requirements under the statute.
  • On June 6, 2023, Maine’s Senate passed a slightly amended version of a new bill to support manufacturers whose products contain PFAS, and sent it to the governor’s desk. Most notably, the bill pushes the time for compliance with the 2021 statute from January 1, 2023, to January 1, 2025.
  • The bill also adds new requirements for manufacturers. In addition to a brief description of the product, the law will require that the manufacturer provide an estimated total number of the product units sold in Maine or nationally. Used products and used product components are officially exempted from the regulations, as well as manufacturers that employ 25 or fewer people.
  • If the specific amounts of PFAS in the product are not known or discoverable, the bill also now allows the submission of the total amount of organic fluorine present in the product. The bill also allows the amount of PFAS to be reported based on information from suppliers rather than specific testing.

Case study: Minnesota

Case study: California

  • In April 2024, California state Sen. NANCY SKINNER introduced Senate Bill (SB) 903, a bill that would ban PFAS in a wide variety of consumer products. This ban was spurred on by a report from the National Resources Defense Council (NRDC) on the incidence of PFAS in water.
  • The bill uses a wider definition for PFAS than the EPA’s own definition, defining PFAS as “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” This is similar to the OECD definition released in 2021, which focused on fluorinated substances “that contain at least one fully fluorinated methyl or methylene carbon atom (without any H/Cl/Br/I atom attached to it).” Many states have also utilized a similar definition of PFAS, which significantly expands the universe further than the EPA and would include larger polymeric forms of PFAS and fluorinated gases – something that the EPA has denied including in a definition in the past.
  • The bill originally defined “ product” with a similar wide latitude, as “an item manufactured, assembled, packaged, or otherwise prepared for sale in California, including, but not limited to, its components, sold or distributed for personal, residential, commercial, or industrial use, including for use in making other products.” However, the bill has since been amended to state that product means an item “sold, distributed, or offered for sale in California.” The “distribution” aspect could be problematic, given the importance of California as a transshipment hub for much of the west coast of the United States.
  • The bill allows the California Department of Toxic Substances Control (DTSC) to also establish prohibitions for intentionally added PFAS in some products or product categories prior to January 1, 2032, “ if it is feasible to do so.” This would give the agency leeway to require an even earlier compliance time for certain industries, however it must undergo a feasibility analysis before it can implement any prohibitions. This would require the department to show that at least one of the following conditions was met: (1) a safer alternative to PFAS in the product category is “reasonably available”; (2) if the “findings of all or part of an applicable publicly available study or evaluation of alternatives shows the viability of safer alternatives to PFAS in the product or product category”; or (3) if the sale or use of PFAS in that product category has already been banned by another state or another country. The use of “another country” indicates that the agency may follow any European Union-led effort to ban PFAS at the EU or member state level, but also gives DTSC the discretion to choose to establish regulations or not.
  • The bill does provide a carve out for “unavoidable uses” of PFAS. An “unavoidable use” to be allowed in the state would require a manufacturer to show there are no safer alternatives, the function that PFAS provides in the product is necessary for the product to function, and the use of PFAS is critical for “health, safety, or the functioning of society.” This is an extremely high bar to meet, and DTSC can review extrinsic evidence on whether any other states or countries have ruled on a similar “unavoidable use” for products. In addition, any determinations on unavoidable uses have a five-year expiration date, meaning that companies would need to reassert (and DTSC would need to reapprove) any applications for continuing unavoidable uses.
  • DTSC would be required to adopt regulations by January 1, 2027, to administer the bill. This would require the agency to establish a process for an unavoidable use application process and fee that would be deposited into a PFAS oversight fund, which would be used to cover the costs of administering the law.

How are the attempts faring?

  • In almost every case of a widespread ban, states are beginning to rethink either the timing or the feasibility of blanket bans on PFAS in products. Maine, for example, passed a law that removed the general notification requirement that was initially planned for 2025, and while it kept many timelines for discrete product categories to be free of intentionally-added PFAS, it pushed a general prohibition back two years, to 2032. The name of the legislation itself, referred to as An Act to Support Manufacturers Whose Products Contain Perfluoroalkyl and Polyfluoroalkyl Substances, indicates that although there is a high level of legislative appetite for PFAS regulation, that appetite is not all-encompassing. Product reformulation can take years, and the potential requirement to reformulate a product exclusively for a smaller market like Maine may also cause manufacturers and importers to simply stop offering those products in the state.
  • California’s attempt, a built-up version of Maine’s with arguably the most thought-out and “realistic” plan to implement, would also carry a hefty price tag for the state. According to a report from the Senate Committee on Appropriations, DTSC explained that it would cost more than $10 million per year to implement the law, and the agency would be forced to establish an entire new branch of the organization to help develop the regulations stemming from the law. The agency itself was unwilling to determine the exact magnitude of the bill but expect it would require at least 40 additional full-time employees to properly implement. As a result, the committee placed the bill on a slow-track “ suspense file.” The same process increases the likelihood of the bill not passing due to budget limitations in the state.
  • Minnesota developed a set of regulations to implement Amara’s Law in March 2024, which aims to ban many categories of products that contain intentionally added PFAS. However, the regulations do not cover the general ban intended for January 2032, which may face its own issues for implementation in the future. Minnesota has its plans, but due to its schedule it has not yet had to actually implement or enforce the bans.

What to take away from state failures on regulating PFAS

  • Overall, the large-scale bans on PFAS seem doomed to fail as currently written. The breadth of the regulated set of products in addition to the difficulties of de-PFASing a supply chain are proving to be a significant challenge for private companies. Patagonia, the outdoor company known for its environmental stances, stated that it took more than 15 years for it to develop alternatives to its PFAS-containing durable weather repellent treatments for its rain jackets and outdoor gear. The length of time, and the level of investment that a company like Patagonia likely has in these types of solutions both indicate that the rest of the industry is far behind the company, meaning that processing PFAS out of a supply chain or formulation prior to the ban dates is unlikely to occur on a large scale.
  • California’s struggles may serve as a warning to other states’ attempts. California functions as the fifth largest economy in the world, and is more than a trillion dollars in GDP ahead of the next state (Texas). The state’s unique placement as an economic powerhouse, as well as the gateway for 40% of all containerized imports into the country (as well as 30% of containerized exports), means that it holds an outsize impact compared to other states in terms of regulatory impact. Other states may utilize California’s regulatory language for programs that have worked (or the reverse if the state wants to build out another state’s regulatory language for a wider audience, such as what Skinner tried to do with much of Maine’s statute). However, if the largest (and arguably most well-resourced) state is unsure of its own ability to implement a wide-ranging PFAS ban, it is likely that other states will take that into consideration when determining bans of their own.
  • Despite wholesale bans currently failing, states are finding some level of success with smaller, more targeted bans on intentionally added PFAS in certain product categories. California passed bans on PFAS in cosmetics and textile articles in 2022, but Gov. GAVIN NEWSOM also vetoed a bill that would have banned PFAS in cleaning products in October 2023. The focus of Newsom’s veto was his allegation that the bill did not provide acceptable regulatory oversight, and did “ not identify or require any regulatory agency to determine compliance with, or enforce, the proposed statute.” The crux of successful bills then, for the future, will likely be more surgical targeting of product categories, with a clearly defined regulatory implementation scheme. If a state is able to effectively implement certain bans, it may be able to use that to implement wider prohibitions, but states are in certain ways building these laws up from scratch, and there will be significant growing pains in how they are envisioned and implemented.

To contact the author of this analysis, please email Walker Livingston ( wlivingston@agencyiq.com).
To contact the editor of this analysis, please email Alexander Gaffney ( agaffney@agencyiq.com)

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