26 states have either passed or proposed regulations regarding per- or polyfluoroalkyl (“PFAS”) based Class B Aqueous Film-Forming foams (“AFFF”) used for firefighting. These regulations typically involve restrictions in four general areas:
While the specific regulations are listed in the chart below, BCLP wants to begin by providing an overview
Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by regulations regarding the presence of per- and polyfluorinated chemicals (“PFAS”) in their products. This area of law is rapidly developing as states create new laws, and the penalties for non-compliance can be significant. Below is an overview of enacted and proposed state laws and regulations to assist companies in beginning an investigation into whether their products are, or will be impacted.
PFAS Background
PFAS is a family of chemicals comprised of over 5,000 compounds. PFAS have been reported in a variety of consumer products and industrial applications including the following: children’s products, textile and apparel items, carpet cleaners, non-stick products (e.g., Teflon), stain resistant coatings, polishes, paints, cleaning products, food packaging (including pizza boxes, microwave popcorn bags, and take-out food containers), firefighting foam, certain cosmetics, and ski wax. Some studies have also shown that
On July 27, 2020, the Environmental Protection Agency (“EPA”) finalized a significant new use rule (“SNUR”) for PFAS substances and other compounds under the Toxic Substances Control Act (“TSCA”), which was originally proposed in 2015. Although this is not the first SNUR for PFAS substances, it includes a new list of compounds, and may be important for your operations if those compounds are part of your business operations.
As described below, companies that manufacture, process, distribute, or import specific long-chain perfluoroalkyl carboxylate (LCPFAC) and perfluoroalkyl sulfonate chemical substances must notify EPA at least 90 days in advance of any manufacturing (including import), processing or distribution for a significant new use.
The final rule becomes effective on September 25, 2020.
1. What Chemicals Are Specifically Regulated?
LCPFAC chemicals are defined as “the long-chain category of perfluoroalkyl carboxylate chemical substances with perfluorinated carbon chain lengths equal to or greater than seven carbons
The U.S. Food and Drug Administration has announced that manufacturers of certain per- and polyfluoroalkyl substances (PFAS) used for grease proofing in paper and paperboard for food packaging (for example, as coatings on some fast food wrappers, to-go boxes, and pizza boxes) have voluntarily agreed to phase out sales of these substances for use as food contact substances in the United States, following new analyses of data raising questions about potential human health risks from chronic dietary exposure.
Starting in January 2021, three manufacturers will begin a three-year phase out of their sales of certain substances that contain 6:2 FTOH for use as food contact substances in the U.S. marketplace. It may take up to 18 months after the phase-out period to exhaust existing stocks of paper and paperboard products containing these food contact substances from the market. A fourth manufacturer informed the FDA in 2019 that
In a world filled with acronyms, PFAS has started emerging as a topic of conversation, regulation, and litigation. Enforcement actions and lawsuits have so far mostly focused on the companies that have manufactured two of the most widely used, and the most heavily regulated, PFAS compounds – PFOA and PFOS – but the scope of regulation and litigation is expanding further into this large family of compounds.
What are PFAS Chemicals?
Per- and polyfluoroalkyl substances (“PFAS”) are a family of over 5,000 man-made fluorinated chemicals some of which have been used since the 1940’s across a variety of industries as part of manufacturing processes, and as components of consumer products.
PFAS are defined by having elemental bonds of fluorine and carbon, rendering them pervasive and persistent. Significantly, this means that PFAS compounds do not break down easily either in the environment or in living organisms.
PFAS chemicals can repel both
