Minnesota is seeking public comment on the development of new rules to implement recent state legislation prohibiting offers to sell, the sale, and/or distribution of any product or product component containing any intentionally added per- and polyfluoroalkyl substances (PFAS)in the state of Minnesota, regardless of whether the product is intended for industrial, commercial, or consumer use. The law (Minnesota Session Law – 2023, Chapter 60, Article 3, Section 21, codified as Minn. Stat. § 116.943, and referred to as “Amara’s Law”) casts a wide regulation net and falls in line with Minnesota’s history of regulations addressing intentionally added PFAS in products. The law includes a provision that allows for the use of PFAS in such products, if the use is currently unavoidable, and the Minnesota Pollution Control Agency’s (MPCA) current public comment period is seeking input on what uses of intentionally added PFAS will qualify as “currently unavoidable uses.”

Companies across a variety of industries will be impacted by the blanket ban of intentionally added PFAS. These companies include without limitation companies in the clothing industry, food packaging industry, the cosmetic industry, and the energy industry, like manufacturers of solar panels, high-capacity batteries, hydrogen fuel cells, wind turbines, sheathing for power cables, and coatings for electrical wires. Companies with intentionally added PFAS in products or product components should take note of the significant reach and impact of Amara’s Law.

The state has provided the following schedule of intentionally added PFAS prohibitions:

January 2020Intentionally added PFAS prohibited in firefighting foam for testing or training.
January 2024Intentionally added PFAS prohibited in food and beverage packaging, and in all firefighting foam through a phased approach.
January 2025Intentionally added PFAS prohibited from sale in Minnesota in 11 categories of common products, including carpets, cookware, and dental floss.
January 2026Manufacturers must report intentionally added PFAS use in products sold in Minnesota.
January 2032Currently avoidable use of intentionally added PFAS is prohibited in products sold in the state, except certain medical devices.

Amara’s Law will affect any manufacturer of a product or product component sold, offered for sale, or distributed in Minnesota that contains intentionally added PFAS. Under the law, “Manufacturer” means “the person that creates or produces a product or whose brand name is affixed to the product. In the case of a product imported into the United States, “manufacturer” includes the importer or first domestic distributor of the product if the person that manufactured or assembled the product or whose brand name is affixed to the product does not have a presence in the United States.”

Manufacturers, as defined by the law, may be located in Minnesota or outside the state, and may include people or entities not typically considered “manufacturers,” like retailers with a brand name or private label brand name affixed to products. Amara’s Law requires that, by January 1, 2026, any “manufacturer” must provide certain information to the Minnesota Pollution Control Agency for any product containing intentionally added PFAS. Notably, “manufacturer” does not include any person who sells, offers for sale, or distributes in Minnesota:

  • Products for which federal law governs the presence of PFAS in the product in a manner that preempts state authority;
  • A product regulated under section 325F.072 (firefighting foam) or 325F.075 (food packaging);
  • A used product; or
  • Products which contain a pesticidal or soil amending ingredient regulated by and reported to the Minnesota Department of Agriculture, unless the commissioner of agriculture approves the action.

While Amara’s Law prohibits the sale or distribution of products and product components containing intentionally added PFAS in Minnesota, certain products or components may be exempt if MPCA determines it meets the definition of a “currently unavoidable use.” Amara’s Law defines “currently unavoidable use” as a use of PFAS that is “essential for health, safety, or the function of society and for which alternatives are not reasonably available.” The law allows the agency to determine, via rulemaking, whether certain product uses will fall within this unavoidable use category.

Before Amara’s Law takes effect in 2032, MPCA has initiated a rulemaking and is seeking public comment and feedback on nine questions related to the term “currently unavoidable use.” These questions generally inquire as to whether to refine the definition, considerations for small businesses, and which PFAS uses are most likely to seek exemptions. The specific questions for public comment include, without limitation, the following:

  • Should criteria be defined for “essential for health, safety, or the functioning of society”? If so, what should those criteria be?
  • Should costs of PFAS alternatives be considered in the definition of “reasonably available”? What is a “reasonable” cost threshold?
  • Should unique considerations be made for small businesses with regards to economic feasibility?
  • What criteria should be used to determine the safety of potential PFAS alternatives?
  • How long should PFAS currently unavoidable use determinations be good for? How should the length of the currently unavoidable use determination be decided. Should significant changes in available information about alternatives trigger a re-evaluation?
  • How should stakeholders request to have a PFAS use be considered for currently unavoidable use determination by the MPCA? Conversely, could stakeholders request a PFAS use not be determined to be currently unavoidable? What information should be submitted in support of such requests?
  • In order to get a sense of what type of and how many products may seek a currently unavoidable uses determination, please share what uses and products you may submit a request for in the future and briefly why. There will be a future opportunity to present your full argument and supporting information for a possible currently unavoidable uses determination.
  • Should MPCA make some initial currently unavoidable use determinations as part of this rulemaking using the proposed criteria?
  • Other questions or comments relating to defining currently unavoidable use.

The public comment period closes on March 1, 2024.

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