Hunton Retail Law Resource

These two worlds are colliding. If any of the products you sell contain hidden ‘forever chemicals’ you will be subject to EPA’s new reporting rule.

Per- and polyfluoroalkyl substances (PFAS) are known as the ‘forever chemicals’ due to their high persistence in the environment. There are over 1,300 different PFAS chemistries of varying shapes and sizes. Concerns exist regarding their impacts on human and environmental health. Though certain PFAS have been phased out, some of them continue to be widely used across many sectors and in many consumer products and industrial applications. In many cases, you may not know they are in products that you use or sell.

In an unprecedented and broad action, EPA has proposed a rule that would require reporting of PFAS by manufacturers and importers under the Toxic Substances Control Act (TSCA). The definition of importers includes those that import articles for commercial purposes, as defined by TSCA. Thus, if you import articles (e.g., clothing, cookware, rugs, electronics, computers, paints, cleaning products, solvents, machinery, automotive parts) and sell them commercially in the US (or have sold them in the past 10 years), if those products contain any of the approximately 1,346 identified PFAS, you would be required to report. Items not covered by the TSCA definition, such as pesticides, foods, food additives, drugs, devices, cosmetics, tobacco products and a few other categories would be excluded; however, the remaining universe is still quite large. As proposed, there is no exemption for de minimis levels, byproducts, or impurities in articles. Further details, and a link to the proposal, are in the blog that can be found here. Comments are due to EPA by September 27, 2021.

The Environmental team at Hunton Andrews Kurth LLP have lawyers and technical personnel located across the nation, with the deep knowledge and vast experience to handle the full range of environmental matters, including PFAS. We have participated in more than 40 US Supreme Court cases and hundreds of cases in the various US Courts of Appeals. We continue to be thought leaders on emerging environmental issues within various areas including in air, water, waste, chemicals, and environmental reviews involving a range of state and federal agency acts and statutes. Additionally, our products and chemicals attorneys have had extensive experience with the issues faced by companies in the energy, automotive, electronic, extractive, chemical, pesticide, manufacturing, pharmaceutical and other industries in domestic and global policy, compliance, enforcement defense and litigation related to new and existing chemicals.