As regulation of per- and polyfluoroalkyl substances (PFAS) continues to develop at the state and federal level, an issue of significant concern is the potential for product packaging made with PFAS to impart or “leach” those PFAS into the products contained within. In a prior article in this space, Taft’s Environmental practice group outlined a recent EPA order requiring a manufacturer of fluorinated high-density polyethylene (HDPE) containers designed to hold various liquid products to cease producing such packaging using PFAS, out of concern for the risk of PFAS leaching into the products. Now, at least one state legislature is taking up the issue in an effort to prevent products containing PFAS as a result of leaching from entering commerce in that state.

In early January 2024 a group of Vermont State Senators introduced Senate Bill 197 that would, among other restrictions related to PFAS, restrict the sale of pesticides that contain PFAS, whether the PFAS substances are included in the product as a result of production or whether the PFAS leach into the product as a result of packaging in fluorinated HDPE containers. Fluorinated HDPE containers are used for packaging various household products, pesticides, and other industrial goods. The EPA has studied fluorinated HDPE containers and concluded that PFOA and other PFAS chemicals in fluorinated HDPE containers can migrate into liquid products in certain circumstances.

Vermont Senate Bill 197 would require pesticides that do not contain PFAS as an added ingredient, but which are packaged in fluorinated HDPE containers, to be tested for certain PFAS, specifically, PFHpA, PFHxS, PFNA, PFOS, PFOA, and PFDA, prior to sale or distribution of the product. If the product contains any of these PFAS exceeding a concentration of 20 parts per trillion as a result of leaching from the container, Vermont Senate Bill 197 would prohibit the sale, distribution or use of the product in Vermont.

This legislation, should it pass, is significant and could signal a trend in regulation of packaging for pesticides, and other products, packaged in fluorinated HDPE containers. Manufacturers that package their products in these containers should be aware of this potential change in Vermont, and perhaps elsewhere, as they consider long term plans for product packaging, and any alterations to those plans.

For more information on compliance with updated PFAS regulations, please contact a member of Taft’s Environmental practice group.