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As regulation of the use of PFAS in consumer products continues to develop at a rapid pace in the United States, businesses that manufacture or sell products internationally should also keep their fingers on the pulse of foreign regulatory developments.

On April 4, members of the French Parliament unanimously approved a bill calling for the ban on the manufacture, import and sale of certain products containing per- and polyfluoroalkyl substances (PFAS), starting January 1, 2026. The bill applies to any cosmetic product, wax product (for skis), or clothing textile product, except for protective clothing for safety and civil security professionals. The ban will extend to all textiles starting on January 1, 2030. Kitchen utensils, which were originally included in the ban as proposed, were removed from the bill following pushback from the cookware industry, which has historically utilized perfluorooctanoic acid (PFOA) for nonstick cookware.

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On October 2023, the U.S. Environmental Protection Agency (EPA) published a final rule in the Federal Register modifying reporting requirements for per- and polyfluoroalkyl substances (PFAS) in the Toxics Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). (See 88 Fed. Reg. 74,360 (October 31, 2023).) Specifically, EPA proposed that PFAS compounds on the TRI should be classified as “chemicals of special concern.” Such classification would eliminate the availability of the de minimis exemption to TRI reporting (also known as Section 313 reporting) for both manufacturers and suppliers. It would also require the use of a specific reporting form for the listed PFAS substances (a Form A instead of a Form R).

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On August 17, 2023, the U.S. Environmental Protection Agency (EPA) released preliminary results from the fifth Unregulated Contaminant Monitoring Rule (UCMR) under Section 1445(a)(2) of the Safe Drinking Water Act (SDWA). The UCMR provides a mechanism for the EPA to collect data regarding impacts to public water systems from “emerging contaminants,” for which the SDWA does not otherwise require sampling and mitigation. The purpose of the UCMR is to allow the agency to collect data regarding the scope and magnitude of impacts to potable water supplies that can serve as the basis for science-based decisions regarding future regulations. Notably, the EPA has indicated that it will interpret the data obtained from the fifth UCMR—or UCMR 5, as it is called—with an eye toward environmental justice.

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On December 29, 2022, President Biden signed the Modernization of Cosmetics Regulation Act of 2022 (MoCRA) into law. (See Consolidated Appropriations Act, 2023, Pub. L. No: 117-328, § 3501-06.) MoCRA substantially expands the authority of the Food and Drug Administration (FDA) to promulgate new regulations over cosmetics and initiate enforcement against manufacturers and distributors of cosmetic products that present health risks. Most MoCRA provisions, including those dealing with facility registration and product listing, take effect on December 29, 2023, and existing facilities will have to register and comply with its product listing requirements as of this date.

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In all, California, Colorado, Connecticut, Hawaii, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington have placed or soon will be placing prohibitions on the distribution of per- and polyfluoroalkyl substances (PFAS) in food packaging containers, cookware and, in other cases, a wide range of products under the authority of consumer protection laws. Companies across the supply chain will be impacted by these regulations. Industry has criticized the state laws as overreaching, particularly considering the inability of certain state agencies to enforce these laws effectively.

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