In May, Colorado Gov. Jared Polis signed into law the strongest state bill to date restricting the sale of PFAS "forever chemicals" in an array of consumer products and, for the first time, in the fluids used to extract oil and gas products (such as for hydraulic fracturing).
The law phases out the use of PFAS — known scientifically as perfluoroalkyl and polyfluoroalkyl substances — in carpets, upholstered furniture, fabric treatments, cosmetics, juvenile products, textile furnishings (draperies and tablecloths) and certain types of food packaging. It also requires any cookware with PFAS to be labeled. It does not allow for any exemptions, and it starts to take effect Jan. 1, 2024.
"Our law should be a warning that whether it's Colorado or another state, you're not going to be able to use PFAS and add to the chemical exposures we're already dealing with. So, you should act quickly to remove them, and those companies that do will be leaders in their industry," Danny Katz, executive director of Colorado Public Interest Research Group, told GreenBiz.
States are increasingly enacting aggressive bans on PFAS use in products as they grapple with widespread drinking water contamination from these chemicals that take centuries to break down in the environment and have been linked to maladies from testicular and kidney cancers, to reproductive disorders to thyroid disease to impaired immune response.
Nearly every U.S. resident carries low levels of PFAS in their blood. While the Supreme Court’s recent decision, West Virginia vs. Environmental Protection Agency (EPA), casts doubt on environmental agency rulemaking authority that will most certainly trickle down to the states, legal experts say they don’t expect it to impact bans on PFAS-containing products passed with clear legislative mandates. What’s more, they think companies should expect more PFAS-containing product bans to come.
"That is the direction state legislatures are going; that is the way the market is going. The interest in getting rid of non-essential uses of PFAS will continue because we are already so inundated with PFAS," said Melanie Benesh, legislative attorney at EWG, an environmental advocacy group that focuses on consumer protection.
Our law should be a warning that whether it's Colorado or another state, you're not going to be able to use PFAS and add to the chemical exposures we're already dealing with.
"Look for several other states in 2022 to propose or even pass similar legislation," agreed John Gardella, shareholder and chief services officer at CMBG3 Law. Gardella’s firm advises companies on regulatory compliance concerning PFAS and is currently tracking PFAS-containing product bans that are in the works in eight states. "It’s an issue that's certainly not going to go away," he said.
In Colorado, the first product bans begin Jan. 1, 2024, for carpets, fabric treatments, food packaging, juvenile products, and oil and gas extraction products containing PFAS. The juvenile products category encompasses many items for children up to age 12, including bedding, strollers, car seats and baby furniture. Bans kick in one year later for PFAS use in cosmetics, and indoor furniture and textile furnishings, and in 2027 for outdoor furniture and textiles. The cookware labelling requirement begins in 2024.
PFAS pollution from firefighting foam used at Colorado’s military bases drove strong bipartisan support for the new law, Katz told GreenBiz. Tens of thousands of people have had their drinking water contaminated with PFAS, he said, particularly in the Colorado Springs area. Some have high levels of PFAS in their blood.
"In a state like Colorado where our water supply is tight, and we're living through a mega-drought, the last thing we can afford is to lose a drop of water to these forever chemicals," Katz said. "And so we want to make sure that we are stopping them from getting into our water, stopping them from getting into our bodies."
Katz said further that Colorado may pass more product bans in the future. "There was an acknowledgment that this bill isn't going to be the solution, but it's the next big solution." Some things weren’t included, he noted, including especially PFAS-containing athletic apparel. What’s more, he thinks the labeling requirement for cookware is "a good step" to educate people about PFAS, but he said, "ultimately we're not going to stop until it's eliminated."
The coalition that came together to pass the bill will come together again, he said, "especially if companies don't take this as a signal and start acting."
States with bans on PFAS-containing products
Maine and Washington have similarly enacted comprehensive laws phasing out PFAS-containing products. Maine’s law bans PFAS use in any product but allows for waivers if no substitute is available. The law does not kick in until 2030 for most products, although manufacturers must begin reporting PFAS use Jan. 1. Washington’s laws require the phase-out of PFAS-containing products, including apparel, non-stick pans, waxes, floor-care products, cosmetics and firefighter gear, by 2025.
California has enacted laws phasing out PFAS in food packaging and in children’s items, such as booster seats and crib mattresses. A bill to ban PFAS in cosmetics is making its way through the legislature. In total, 11 states have passed laws phasing out PFAS in food packaging. (See Safer States for a complete listing).
I can imagine courts looking at state laws and adopting that same reason that something is not clearly authorized enough … which is really challenging and scary, because that is the fundamental difference between legislating and rulemaking.
Colorado, like many states with PFAS laws, takes a more protective stance than the EPA in its definition of what constitutes a PFAS. It considers any chemical with at least one fully fluorinated carbon atom to be a PFAS, whereby EPA’s definition includes compounds with relatively longer carbon-fluorine molecule chains, although the agency says the definition is a "working definition" that could change.
Inconsistencies and broad mandates about what constitutes a PFAS are challenging for impacted industries, Gardella told GreenBiz. "It's a sourcing supply chain issue as well," he added, noting that many chemicals come from overseas where the reporting and disclosure requirements are less strict, so it’s difficult to know whether a particular product or raw material contains a PFAS. Companies are hiring experts to help them sort it all out, he said.
Impact of West Virginia vs. EPA
The Supreme Court’s ruling restricting EPA’s ability to regulate carbon emissions is unlikely to have much impact on Colorado’s or other state’s laws enacting bans of PFAS-containing products, experts agreed. "It was about the agency's regulatory action and how clear the congressional mandate is, and [in Colorado] you have a very clear mandate from the legislature," Benesh said.
But, she added, "I can imagine courts looking at state laws and adopting that same reason that something is not clearly authorized enough … which is really challenging and scary, because that is the fundamental difference between legislating and rulemaking." Historically, legislators have delegated to agencies who have the expertise to design programs that protect the public’s health.
Gardella agreed, but he said he thinks the Supreme Court decision won’t filter down to states across the board. "Some of the more conservative states are going to use that ruling to support similar rulings in their own states, but I think there will be other states that go the other way and continue to grant their state regulatory agencies the power to act more independently."
As far as the ruling affecting federal action on PFAS, Benesh said that there are clear statutory mandates for many actions that EPA is considering. "It's really going to depend on the action," she said, and "what Congress has said about it … versus how creative the agency is trying to be to address certain actions."
Still she concludes, "the long-term ramifications of this decision have yet to be seen."
Regardless of its potential impact on states’ regulatory authorities, experts said that companies should start eliminating the forever chemicals now.
"It's critical that companies immediately begin to phase out PFAS from any of their products," Katz said. "We recognize that they've been used to make things more water-resistant or stick-resistant, but the cost of a water-resistant product is simply too much."