October 2023

Less than one month ago, EPA released its final reporting and recordkeeping requirements for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA). A Taft PFAS Insights post on that rule is available here. Now, just a few short weeks after issuing that rule, which imposed a one-time reporting requirement for PFAS uses, production volumes, manufacturing byproducts, disposal practices, and PFAS exposures from 2011-2022, EPA is set to issue a final rule that amends reporting requirements for PFAS under the Toxics Release Inventory (TRI).

The TRI, created by the Emergency Planning and Community Right-to-Know Act (EPCRA), is a collection of information gathered from the reporting of toxic chemical releases and pollution prevention activities, as required of industrial and federal facilities. Facilities that manufacture, process, or otherwise use notable quantities of any of the over 780 TRI-listed chemicals must report annually the quantities of those chemicals released into the environment or otherwise managed as waste. The vast majority of the 189 chemicals in the PFAS family were added to the TRI list for the 2021 reporting period, and since that time facilities have been required to file an annual report for the TRI if they manufactured, processed, or otherwise used more than 100 pounds of those chemicals in the annual reporting period. Facilities that fell under that volume (the de minimis amount) were previously exempt from the PFAS reporting requirements.

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On October 17, California Attorney General Rob Bonta issued an Enforcement Advisory Letter indicating that the Attorney General’s office intends to bring enforcement actions against companies that fail to comply with California’s new law restricting the use of per- and polyfluoroalkyl substances (PFAS) in food packaging and requiring disclosure and labeling when PFAS are used in cookware products.

The California law, known as Assembly Bill 1200 (A.B. 1200), went into effect on January 1, 2023. The law prohibits businesses, including shops and restaurants selling take-out food, from distributing, selling, or offering for sale any “food packaging” that contains PFAS. “Food packaging” is broadly defined and includes take-out food containers, unit product boxes, liners, wrappers, serving vessels, eating utensils, straws, food boxes, and disposable plates, bowls, or trays. The law also requires disclosure and labeling when PFAS are intentionally included in any “cookware” product that comes into contact with food or beverages. “Cookware” includes pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils.

On September 20, 2023, the U.S. Consumer Product Safety Commission (CPSC) published a request for information (RFI) on per- and polyfluoroalkyl substances (PFAS). Federal Register. The CPSC seeks information from all stakeholders, such as consumers, manufacturers, importers, government agencies, non-governmental organizations, and researchers, regarding:

(1) PFAS used in commerce or consumer products,

(2) potential exposures associated with the use of PFAS in consumer products, and

(3) potential human health effects associated with exposures to PFAS from the use of consumer products.