A broad new per-and polyfluoroalkyl substances (“PFAS”) reporting rule has companies across industries in the orbit of the Environmental Protection Agency (“EPA”). On October 11, the EPA published a final rule, Toxic Substances Control Act Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances, which requires any entity or person that has manufactured PFAS – also known as “forever chemicals” – for a commercial purpose since January 2011 to submit PFAS uses, production volumes, byproducts, disposals, exposures, and existing information on environmental or health effects to the EPA.
The new PFAS reporting rule applies to anyone that has manufactured, for “a commercial purpose,” a chemical substance or mixture containing a chemical substance defined as PFAS at any time since January 1, 2011. Beyond that, the reporting requirements extend to entities that have imported articles containing covered PFAS chemicals into the U.S., as well as to PFAS-containing byproducts and impurities produced during the manufacturing process. And still yet, the EPA’s reporting rule does not establish any de minimis thresholds or minimum production volumes, which means that any entity that has manufactured in (or imported into) the U.S. a PFAS or an article containing a PFAS will have to report to the EPA.
“The rule’s breadth, coupled with its retrospectivity, will likely create new recordkeeping and reporting questions for manufacturers, especially because it does not include de minimis exemptions,” Dentons’ Amy Rubenstein, Robin Thomerson, and Bradley Strait stated in a recent note. “As a result, any amount of PFAS that is manufactured (or imported) must be reported to EPA.”
While apparel and accessories brands/retailers may not immediately spring to mind when it comes to “forever chemicals,” the Natural Resources Defense Council states that PFAS are “used widely in our clothing, shoes, and accessories,” with the functionality of this group of synthetic chemicals helping to provide “a more stain-resistant coat or more breathable yet water-resistant yoga pants,” for example. Studies have similarly found PFAS to be present – and mostly unlabeled – in cosmetics, including nail polish and eye makeup, and in other consumer products.
So, what does this mean for retailers? It means that they will “potentially have to report everything from raincoats and yoga pants to cosmetics – depending on the location of the direct supplier,” according to Benesch’s Meegan Brooks, who says that under the EPA’s rule, “manufacturers” are defined to include any company that manufacturers PFAS in the U.S., imports PFAS – or that imports an article that contains PFAS. Moreover, “The EPA has explicitly stated that coated and dyed fabrics qualify as PFAS-containing articles, meaning that clothing will fall into this category.”
There is an exclusion for companies that merelydistribute, use, or dispose of PFAS-containing articles or receive PFAS-containing articles from domestic suppliers. However, Brooks states that “retailers are only protected by this exemption if all PFAS-containing inventory came from suppliers in the United States.” As a result, “The vast majority of retailers that import goods from abroad would still need to report.”
As for how reporting works: Retailers that are importers under the EPA’s rule will be able to report using the streamlined article import form, which requests less information, Brooks says. “Further, because importers may not know or be able to ascertain how much PFAS is contained within the imported articles, the streamlined form allows production volume to be reported as the total weight of the imported articles or as the quantity of articles imported, rather than weight of the PFAS.”
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