PFAS in Children’s Products is a major focus for state legislators across the country, prompting some of the most stringent PFAS restrictions in consumer products.  Thus far, eight states have enacted legislation concerning PFAS substances in Children’s or Juvenile Products (“Children’s Products”).  Seven additional states have proposed Children’s Products laws, and many of these are expected to continue to move through the legislative process in future months. There are numerous key features that are generally consistent across the state laws: “Juvenile products” are generally defined as products that are intended for use by children 12 years old or younger. The prohibitions apply to “intentionally added” PFAS, which generally are PFAS added to a product to create a specific effect in the finished product. The compliance timelines are much shorter than the timelines for other types of consumer products that are being regulated for the presence of intentionally added PFAS. Some, but not all, of the laws exempt internal components of the product that are not accessible during foreseeable “use and abuse” of the product. Perhaps the biggest challenge posed by these laws is that unlike other PFAS laws which apply to a specific industry category (e.g., cookware, cosmetics, apparel), they apply across all consumer product categories, making them more difficult for impacted businesses to track.

In the absence of comprehensive federal regulation of PFAS in food packaging, states are dishing out their own laws.  Thus far, twelve states have enacted laws addressing PFAS substances in food containers and packaging materials (“Food Packaging”), and there are fourteen proposed bills that are currently pending in numerous states.  These laws are intended to address concerns that storing food in Food Packaging that contains PFAS compounds may result in increased ingestion of those PFAS substances.  Related to food packaging, a growing number of states are enacting or proposing general bills involving recyclability of food or beverage packaging, but this client alert does not specifically address those requirements as these measures do not exclusively involve PFAS substances. According to the United States Environmental Protection Agency (“EPA”), commonly cited examples of Food Packaging that have historically contained PFAS substances include “grease-resistant paper, fast food containers/wrappers, microwave popcorn bags, pizza boxes, and candy wrappers.”

As discussed in more detail in BCLP’s 2023 federal recap client alert, per- and polyfluoroalkyl substances (“PFAS”) were a major focus for the United States Environmental Protection Agency (“EPA”) in 2023, and 2024 will likely mark even more significant activity in the federal regulation of these compounds.  While we expect a variety of actions at the federal level, this alert highlights five developments that we anticipate in 2024 will have substantial economic impacts across a wide range of industries.

In 2023, the United States Environmental Protection Agency (“EPA”) issued a final rule under the Toxic Substances Control Act (“TSCA”) which requires manufacturers, including importers, of certain per- and polyfluoroalkyl substances (“PFAS”) to report PFAS manufactured in the United States, or imported into the United States for a commercial purpose between January 1, 2011, and December 31, 2022.  The reporting system opens in November 2024, and most reports (except for small businesses) must be submitted by May 8, 2025, or 18 months after the effective date of the rule (see §705.20 of the rule).  In this alert, BCLP and Ramboll Americas Engineering Solutions Inc. (“Ramboll”) are collaborating to discuss EPA’s recent publication of a non-exhaustive list of PFAS that fall within the structural definitions, and what that means for businesses that are working towards compliance with the reporting rule.

The United States Environmental Protection Agency (“EPA”) started the new year by finalizing two rules involving per- or polyfluoroalkyl substances (“PFAS”) under the Toxic Substances Control Act (“TSCA”) and the Toxic Release Inventory (“TRI”).  The first rule requires industries to consult with EPA before using any of the designated 329 inactive PFAS substances.  The second rule adds seven PFAS substances to the list of chemicals that entities must report. The details of the new rules are below, but these actions demonstrate EPA’s continued commitment to regulate PFAS substances under a wide range of environmental laws.

In the absence of an enforceable federal drinking water standard for per- and polyfluoroalkyl substances (“PFAS”) – for the time being anyway - many states have regulated PFAS compounds in drinking water.  The result is a patchwork of regulations and standards of varying levels, which presents significant operational and compliance challenges to impacted industries.  This client alert surveys the maximum contaminant levels (“MCLs”), as well as guidance and notification levels, for PFAS compounds – typically perfluorooctane sulfonate (“PFOS”) and perfluorooctanoic acid (”PFOA”)  – in drinking water across the United States.