PFAS (aka Forever Chemicals) – What eControl Brands Should Know

What do mascara, menstrual underwear, and outdoor jackets have in common? Manufacturers of all of these products have been sued by consumers on the ground that their products contain one of the thousands of man-made chemicals referred to as PFAS (aka “forever chemicals”). And there are many other PFAS-containing products on the market, even now. In addition to consumer lawsuits, states rapidly are enacting laws and regulations banning or regulating the manufacture and/or sale of PFAS-containing products. In this climate, brands will be well-served by determining whether they are manufacturing and selling products containing PFAS.

Let’s back up. What are PFAS?

PFAS stands for per- and polyfluoroalkyl substances. There are now thousands of these man-made chemicals in existence. PFAS are often referred to as “forever chemicals” because they break down slowly in the environment and can build up in the body, potentially causing health problems, including cancer.

Where are PFAS found?

PFAS are found in numerous and varied consumer products because of their resistance to water, grease, and stains, as well as their non-stick characteristics. Among the many products in which PFAS may be found are:

• Stain-resistant carpets and rugs;
• Stain-resistant clothing;
• Outdoor clothing such as water-resistant jackets;
• Cosmetics;
• Athletic wear such as leggings;
• Juvenile products, such as baby play mats and mattress protectors; and
• Non-stick cookware.

What health risks are associated with PFAS exposures?

Exposure to PFAS has been linked to a number of negative health impacts, including:

• Kidney, prostate, and testicular cancer;
• Decreased fertility;
• Developmental effects and delays in children, including low birth weight;
• Thyroid disease; and
• Reduced ability to fight infection.

PFAS also may interfere with the efficacy of vaccines. It should be noted that, to date, the human studies have found that PFAS exposure is linked or associated with these health outcomes, but the available science has not determined definitively that PFAS exposure causes any of the negative impacts.

So our company may have PFAS as an ingredient in our products. What should we consider?

There are an increasing number of state, federal, and European statutes and regulations regarding products containing PFAS. For example:

• California banned the sale, distribution, or offer for sale food packaging that contains regulated PFAS, effective January 1, 2023.
• California banned the sale of juvenile products containing regulated PFAS, effective July 1, 2023.
• Effective January 1, 2024, Colorado will prohibit the sale, distribution, offer for sale of a number of consumer products containing intentionally-add PFAS, including fabric treatments and juvenile products.
• Effective January 1, 2025, both California and Colorado will prohibit the sale of cosmetics that contain intentionally-added PFAS.
• Pursuant to California’s Proposition 65, products that contains certain PFAS will be required to have stating that the PFAS is “known to the state to cause” cancer and/or reproductive toxicity.
• The United States Environmental Protection Agency and the Food and Drug Administration Agency have both promulgated or are in the process of promulgating that touch on PFAS.
• The European Union has also established regulations governing the production and use of PFAS. Among other things, two PFAS have been identified as persistent organic pollutants (POPs), such that their production and use, as well as placing them in the market, are prohibited.

Additionally, there have been a growing number of lawsuits alleging harms caused by PFAS. These include complaints alleging fraud, misrepresentation, and various business torts for failing to disclose the presence of PFAS in a product or claiming that the product does not contain harmful chemicals. There have also been suits filed by property owners claiming contamination of their water or property due to the improper disposal of PFAS-containing waste by companies using PFAS in the manufacturing of their products.

What Should Brands Do Now?

• In order to comply with current regulations as well as those that will become effective in the future, it is essential that brands examine their manufacturing processes to determine whether PFAS are being used or created in the manufacturing process.
• Brands must put into place systems to monitor the changing legal and regulatory landscape regarding the sale of PFAS-containing products. This includes monitoring the effective date of a prohibitions or other regulatory requirements.
• Brands should regularly examine their supply chains to ensure that PFAS are not being added to their products up the line.

I want to further discuss…

Vorys has a group of attorneys who are actively monitoring PFAS regulations and litigation. If you have questions about PFAS or how PFAS regulations may impact your business, please reach out to Vorys eControl attorney Nina Webb-Lawton at niwebb@vorys.com.