PFAS Are Forever: A Retail Adventure

Addressing per- and poly-fluorinated alkyl substances (PFAS) continues to be a hot-button issue in the environmental community, as studies link them to cancer, hormone disruption, liver and kidney damage, and other health concerns. PFAS are a class of thousands of man-made chemicals that have been manufactured and used in numerous products dating back to the 1930s and that can be found in a wide range of different applications across various industries, including the retail sector. Of particular relevance to retailers, PFAS can be found in food and food packaging, household products, personal care products, carpets and upholstery, and more, drawing increased regulatory and public scrutiny on such products, packaging, and related waste streams. PFAS pose another challenge to retailers in the context of real estate and corporate deals, which will be discussed during our complimentary two-part webinar miniseries on June 21 and 22.

Regulatory Requirements

The U.S. Environmental Protection Agency (EPA) continues to take actions to address PFAS, as do state and local governments and regulators, creating an expanding patchwork of PFAS laws that can be difficult for retailers to track and manage.

On the federal level, for example, EPA finalized a rule under the Toxic Substances Control Act (TSCA) that requires advance notice to EPA before importing a variety of products containing certain long-chain PFAS chemicals as part of an article’s surface coating or a carpet, and in response to a petition from the State of New Mexico, EPA intends to move forward with designating certain PFAS as “hazardous constituents” under an appendix maintained as part of the Resource Conservation and Recovery Act (RCRA), a fundamental step towards a future RCRA hazardous waste listing.

Perhaps most notably, EPA is further expected to issue a proposed rule that would designate two PFAS – perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) – as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”). A final designation of these chemicals as CERCLA hazardous substances could have significant impacts across the country.

Numerous states have also forged ahead with their own efforts to address PFAS and, in many cases, have already enacted laws and regulations at a much more aggressive pace than the federal government.

For example, California has added several PFAS chemicals to the list of substances subject to labeling requirements set forth in its Safe Drinking Water and Toxic Enforcement Act, better known as Proposition 65. California regulations that became effective on April 1, 2022, require, as a first step, that manufacturers report all their after-market treatment products sold in California that 1) contain PFAS and 2) are intended for use by consumers, retailers, etc. This reporting requirement applies to treatment products intended for use on textile and leather products, such as shoes and clothing (after they are manufactured). If a manufacturer fails to comply with the requirements to report these products and consider safer alternatives, the California Department of Toxic Substances Control can require retailers to cease ordering the non-compliant products and stop selling them in California. California has also banned, effective July 1, 2023, the sale of PFAS-containing cribs, playpens, and many other children’s products, as well as introduced a proposed bill that would ban the manufacture and sale of any cosmetic product that contains intentionally-added PFAS, starting Jan. 1, 2025.

Several other states have also enacted or are considering labeling and reporting requirements for PFAS products, as well as prohibitions on the manufacture and sale of various categories of PFAS-containing products.

Public Pressure

In addition to regulators, retailers and brands are themselves stepping up and taking action to address PFAS—some more voluntarily than others. For example, Restaurant Brands International (RBI), owner of Burger King, Popeyes, and Tim Hortons, recently announced that it will ban PFAS in food packaging globally by 2025. Such voluntary initiatives (or, in some cases, lack thereof) to address PFAS by retailers and brands are receiving additional scrutiny as stakeholders (such as retail customers) demand more sustainable and ethical business practices, including the use of toxic chemicals (such as PFAS) in their products, prompting businesses to pursue Environmental, Social, and Governance (ESG) targets and policies.

Related to this ESG focus, various organizations have begun reviewing the policies and practices of retailers to evaluate the accuracy and adequacy of information provided to customers. For example, NRDC, Fashion FWD, and U.S. PIRG Education Fund recently released a scorecard that graded the PFAS-related policies and commitments of 30 top U.S.-based apparel brands and retailers. This scorecard, while not a regulatory requirement or obligation, has a stated purpose of “serving as a wake-up call for the fashion industry”, as well as enabling consumers to “inform their purchases and help push the industry towards better and more sustainable practices.”

Recommendations for Retailers

Given such developments, it is prudent for retailers to begin taking action, if they haven’t already, to ensure they have a clear understanding of the PFAS contents of their products and packaging materials so that they can adequately assess and achieve compliance with current and potential future laws. Specifically:

1. If PFAS are eventually designated as hazardous substances under CERCLA or as hazardous wastes under RCRA, this would likely trigger release reporting requirements and possibly also expose retailers to liability as potentially responsible parties if they generate and arrange for the disposal of PFAS-containing wastes. This liability would likely apply to legacy wastes as well, and retailers should therefore consider near-term steps to improve documentation and recordkeeping procedures related to types and quantities of waste they generate and/or dispose.
2. Retailers should also consider participating in the public comment period if the EPA proposes the rulemaking to designate PFAS as CERCLA hazardous substances or RCRA hazardous wastes.
3. Retailers should stay up-to-date on the latest regulatory developments related to PFAS, particularly those designating any PFAS as hazardous under state or federal frameworks. Hazardous waste typically requires special handling and must only be disposed of at designated facilities. Inadvertently disposing of hazardous wastes at landfills not designed for hazardous products can lead to significant enforcement actions, and retailers should ensure they are aware of the applicable requirements and have an effective waste classification procedure in place.
4. For products or packaging confirmed to contain PFAS, retailers should consider phase-out plans to switch to PFAS-free alternatives, where possible, and if not, retailers should explore extended producer responsibility (EPR) or take-back programs, through which suppliers or manufacturers are responsible for taking back and safely disposing of unused or unwanted items. EPR laws are gaining momentum at the state level in the United States; however, voluntary EPR can be an important tool in addressing the PFAS waste problem.

Retailers with questions regarding PFAS laws, regulations, or policies, whether in effect or proposed, should contact a Clark Hill Environmental & Natural Resources attorney. 

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The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.