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PFAS Regulation: As Ubiquitous as the Class of Chemicals Captured in the Term "PFAS"

If you think the pace of global regulatory attention devoted to per- and polyfluoroalkyl substances (PFAS) has greatly accelerated, you would be spot on. PFAS regulation is as globally ubiquitous as the very class of chemicals the term “PFAS” is defined to include, and the pace is unlikely to abate.

What Do We Know for Sure?

Manufactured since the 1940s, PFAS are used to make a broad range of products, from refrigerant gases to surgical implants, to chemical-resistant seals on spacecraft. Much of the popular attention focuses on perfluoro surfactants (perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), and their homologs). They are found in a diverse range of consumer and industrial applications, including non-stick coating in cookware, stain-resistant clothing, furniture, food packaging, adhesives, electrical insulation wire, tank linings, and firefighting foams.

The carbon-fluorine bond is the chemical backbone of PFAS and one of the shortest and strongest bonds known to exist. The bond is this class of chemicals’ superpower. It makes PFAS highly resistant to breakdown but also makes them hard to get rid of, hence their nickname “forever chemicals.” Human exposure to PFAS occurs through consuming PFAS-contaminated water and food and/or by using products containing PFAS. Human exposure to PFAS has been linked to adverse health effects.

Words Matter

 

Scientists are trying to define PFAS. The Europe-based Organization for Economic Cooperation and Development (OECD) defines PFAS as, “any chemical compound with one fluorinated carbon atom,” a definition that includes tens of thousands of chemicals. Here in the United States, the U.S. Environmental Protection Agency’s (EPA) “working definition” of PFAS is narrower. PFAS is defined as at least “two adjacent carbon atoms, where one carbon is fully fluorinated, and the other is at least partially fluorinated.”

Sound too nerdy? It is, but words matter. The U.S. definition includes fewer chemicals. According to the U.S. government, some 4,000 to 5,000 PFAS exist, significantly fewer than under the OECD definition, and too few according to a large and growing global chorus of public health activists. On July 13, 2022, the Office of Science and Technology Policy requested input from all interested parties to identify data gaps in research and development regarding several aspects of PFAS. This included information on alternative definitions of PFAS, one of several recent expressions of interest by the federal government in aligning the U.S. and OECD definitions of PFAS.

What Don’t We Know?

 

Advocates, armed by science, routinely note that PFAS are extraordinarily diverse, and there is no one-size-fits-all approach to regulation. Each PFAS has a unique chemical identity and toxicological profile. Structural differences in carbon chain length, degree of fluorination, and chemical functional group influence a substance’s mobility, fate, environmental degradation, and toxicity in biological systems. This invites serious differences of opinion as to whether the uniquely varied chemical properties associated with PFAS make the very categorization of “PFAS” into a single category chemically and scientifically defensible. However, successfully making distinctions among this large chemical category is increasingly challenging. This is disquieting since not all PFAS in all applications are bad, and a chemical’s undeserving inclusion in a class of chemicals the court of public opinion has judged “unsafe at any speed” is scientifically unprincipled.

Why We Care

 

As chemical stakeholders, we all want what is best for human health and the environment. However, we also care about regulations rooted in science. We all know that the universe of regulatory controls and opportunities for enforcement increase exponentially when a chemical class is defined broadly (and somewhat unclearly), its class members as per se bad, and it is therefore incredibly ubiquitous. This is, of course, the very essence of the PFAS category.

The Biden Administration has strengthened its commitment to addressing PFAS. Last October, it issued its PFAS Strategic Roadmap: EPA’s Commitments to Action 2021–2024, outlining dozens of regulatory initiatives intended to address PFAS contamination and exposure. Congress has also enacted measures included in defense appropriation actions that have resulted in regulatory actions implemented by EPA. Importantly, EPA proposed last year under the Toxic Substances Control Act (TSCA) Section 8(a)(7) a reporting rule that would require “each person who has manufactured” a PFAS since January 2011, in any quantity, without exemptions, to report certain information to EPA. More recently, EPA has issued TSCA Test Orders compelling new testing data on PFAS. Similar initiatives are emerging globally.

What Should You Do?

 

NACD members need to know what’s in play to stay ahead of these actions and stay in compliance.

  • Monitor the regulatory landscape and know what is coming down the pike. NACD, in concert with the team at Bergeson & Campbell PC, keeps members up to date. Visit the NACD Chemicals Management Issue Page for the latest updates.
  • Avoid high-density polyethylene (HDPE) fluorinated containers, as they are known to be a source of PFAS when they come in contact with certain chemicals.
  • Know what your suppliers sell you. Your supply agreements should warrant and represent the absence of PFAS, or you should obtain a clear statement of PFAS content and species.
  • Anticipate that your downstream customers will want you to make similar representations, so know your raw material components.

Bottom Line

 

PFAS restrictions are expected to increase. There will be sustained commercial pressure to reformulate products containing PFAS and enhanced liability for both ongoing exposure to PFAS and remediation cost for addressing legacy contamination. Although legitimate scientific differences of opinion exist, the momentum is unlikely to slow, and thoughtful decision-making is needed to avert costly regulatory violations or ill-considered business decisions.

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