Business & Commercial LitigationNew Regulatory Developments for Product Manufacturers Whose Products Contain ‘Forever Chemicals’

05/10/2024by Thomas Fee

On December 14, 2023, the U.S. Environmental Protection Agency published its PFAS Strategic Roadmap: Second Annual Progress Report. This report contained information regarding important regulatory actions in chemical manufacturing and consumer product usage. Product manufacturers will want to take note of these important updates to protect themselves from the rapidly expanding class action lawsuits. Fee, Smith & Sharp LLP is experienced in supporting businesses in and out of the courtroom and is prepared to help clients navigate state and federal PFAS laws and regulations.

Exploring PFAS, The Forever Chemicals

Per- and poly-fluoroalkyl substances or PFAS are also called forever chemicals because they all share in common a carbon-fluorine molecular bond, which is one of the strongest known bonds in chemistry. Because of this, they do not degrade and accumulate over time in soils and water sources and within the living tissue of humans and animals. The Environmental Protection Agency (EPA) Toxic Substances Control Act (TSCA) identifies PFAS as persistent, bioaccumulative, and toxic chemicals.

PFAS are used to make coatings and products that resist heat, stains, oil, grease, and water, which makes them particularly useful in the manufacturing industry. Discovered in 1938 and widely used since, these fluorinated chemicals are commonly found in many consumer products, including carpeting, waterproof clothing, food paper wrappings, and nonstick cookware. PFAS are used in many manufacturing industries, including textiles, food and beverage, technology, automotive, machinery, and life sciences.

The above Centers for Disease Control (CDC) PFAS Fact Sheet states that studies have yet to determine how exactly exposure to this chemical affects people’s health. However, there are indications that it could potentially affect growth, development, reproduction, thyroid and liver function, and the immune system. CDC scientists found at least four PFAS in the blood of people who took part in their National Health and Nutrition Examination Study, indicating widespread exposure in the U.S. population.

U.S. Federal Regulations Regarding PFAS

The U.S. Environmental Protection Agency is the main driving force behind federal research and regulation of PFAS. By May 2025, all manufacturers of PFAS and PFAS-containing products or materials will need to submit detailed reports about their use of PFAS for each year from 2011 to the present. Reports need to include any chemical identities or trade names, categories of use, amount made and processed, and byproducts and disposal. In addition, they will have to submit any information they have regarding environmental and health effects as well as the extent of exposure for their employees.

Importers also must provide this same information, but have until November 2025 to do so. These reports can be submitted online through the EPA’s Central Data Exchange Portal. For importers that do not know or cannot ascertain the required information, the EPA will provide a simplified reporting form.

Manufacturers and importers should act quickly to gather this information and report it to the EPA to avoid stiff penalties and fines. Civil and criminal penalties may apply for a failure to report, as well as a maximum penalty of $46,989 per day. The EPA has the authority to investigate any potential violators by requesting information or conducting inspections of facilities. If your business needs assistance determining a plan to move forward, contact Fee, Smith & Sharp for legal advice on PFAS reporting and regulations.

U.S. State Regulations Regarding PFAS

States have begun enacting their own legal restrictions regarding PFAS in consumer products. They are doing this to have further control and mitigate risks associated with PFAS exposure at the local level. PFAS pose significant environmental risks due to the longevity of this chemical. States that have created their own regulations are acknowledging the importance of protecting their ecosystems and natural resources from additional harm.

As of 2024, ten states have enacted PFAS regulations, and several states have enacted various broad bans on PFAS in household products like carpets, cosmetics, and textiles. Most states’ PFAS regulations share the commonality of reporting requirements for products with added PFAS and for companies to begin planning a phase-out unless specifically excluded by the regulation. These laws will significantly impact industries in these states and nationwide due to potential compliance costs and the effort required to remove PFAS from products.

Texas does not yet have any state-level regulations regarding PFAS, but with the dramatic increase in attention this chemical has received recently, this could change. Industries impacted by federal regulations should continue to follow reporting on state laws. The attorneys of Fee, Smith & Sharp are well versed in PFAS laws and regulations and can help your company navigate any potential issues in the future.

PFAS Litigation Against Product Manufacturers

With the increased attention PFAS are receiving at federal and state levels comes an expanding market for PFAS-related litigation. When the EPA first identified PFAS as a target for research and regulations, governing bodies started bringing cases against chemical manufacturers in attempts to clean up chemical contamination in their local soil and groundwater. Now, consumer product manufacturers are dealing with class action lawsuits alleging consumer fraud and deceptive business practices. They claim that the defendant company’s advertising of a product as “healthy,” “safe,” or “sustainable” is an inaccurate and misleading claim due to the product’s status as containing PFAS.

Proactive steps need to be taken by manufacturers to mitigate their litigation risk and create a plan to move forward with PFAS alternatives in their consumer products. It is important to know the extent of PFAS in your product offerings, both for internal usage and for any imported goods, and via communication with suppliers. Companies must consider their responses to consumer inquiries and media attention, as well as how advertising and marketing utilize claims that could expose them to litigation.

If your organization is struggling with the complexities of new PFAS regulations, Fee, Smith & Sharp is here to provide experienced legal counsel and assistance. We can advise you on avoiding litigation, proper EPA reporting, and developing a plan for how your company utilizes PFAS moving forward. Contact us today with any questions you have regarding these new regulatory developments and how they impact your company’s future.

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