No Rest for the Weary When It Comes to PFAS and Consumer Products

At a time when a growing number of U.S. states are implementing reporting requirements and restrictions on per- and polyfluoroalkyl substances (PFAS) in consumer products, the Canadian government has joined the fray by announcing its own PFAS reporting requirements. However, a minor form of relief arose when the U.S. Environmental Protection Agency (EPA) announced it has delayed, until the summer of 2025, the opening date for the federal government’s own PFAS reporting rule.

Canadian Government Issues PFAS Reporting Requirement. In late July, the Canadian government published in the Canadian Gazette a notice of new reporting requirements for a broad swath of commercially active PFAS. The requirements were issued pursuant to paragraph 71(1)(b) of the Canadian Environmental Protection Act, 1999, which provides authority to the government to collect such information for purposes of implementing the act. Reporting is to be done electronically, using an Excel-based spreadsheet submitted via Environment and Climate Change Canada’s “Single Window” platform. Unlike the chemically expansive and significantly lengthy backward-looking scope of the U.S. EPA’s requirements (see our Advisory of October 5, 2023), the Canadian initiative applies only to 312 specific substances listed in Schedule 1 of the notice. The deadline for responding to the Canadian requirements is soon — January 29, 2025. The government’s objective is to collect information on certain PFAS (both as substances and in mixtures, as well as in products and manufactured articles) present in Canadian commerce, focusing only on the calendar year 2023. The longer term goal is to use the information gathered to establish baseline data on PFAS in commercial products that will support future regulatory activities related to the class of PFAS. The list of substances subject to the reporting requirements (in contrast to the U.S. government’s and various states’ approaches) is not intended to be an exhaustive list of PFAS. Rather, the requirement is focused on substances known or anticipated to be in Canadian commerce and that have not been recently surveyed. The requirements, especially with respect to imported articles in particular, are focused on PFAS-containing consumer use products to which human exposures and direct human contacts are expected to occur.

The notice applies to any person who, during the 2023 calendar year, manufactured, imported, or used listed substances in quantities exceeding very small, specified threshold quantities. Thus, entities that produced in, or imported into, Canada consumer use products containing PFAS are likely to be subject to the reporting requirements. Entities that do not meet the reporting criteria but are involved with listed or non-listed PFAS are highly recommended to submit a “Declaration of Stakeholder Interest.” The Canadian government is encouraging this to permit engagement with such entities, warning that if the authorities lack information about certain substances and uses, this could result in the use of conservative assumptions in risk assessment or potential risk management measures in Canada which may adversely impact interested parties’ ability to manufacture, import, or use certain substances or products containing these substances.

A foreign supplier (that is, an entity exporting to Canada and located outside of Canada) is not subject to the notice requirements. Rather, the receiver (who imports to Canada) must respond to the requirements if the criteria are met. Foreign suppliers are encouraged to inform their Canadian customers (i.e., Canadian importers) that they import a reportable substance and may meet the reporting criteria of the notice. A letter to help Canadian stakeholders obtain data from their foreign suppliers is available for download on the request for information from foreign suppliers webpage.

U.S. Environmental Protection Agency Delays PFAS Reporting Rule Opening Period and Deadlines. On September 5, 2024, EPA issued via a direct final rule an eight-month delay in the reporting and recordkeeping requirements for what may be many hundreds, if not thousands, of commercially active and inactive PFAS under the Toxic Substances Control Act. As we have previously reported, EPA’s considerably challenging requirements obligate any person who has manufactured or imported PFAS since 2011 (through the end of 2022) to report the PFAS, specifically the production (including import) volumes, uses, exposures, releases, and unpublished hazards data to EPA. Reporting is expected to include substances used only for R&D, and even manufacturing byproducts and chemical impurities that may remain present in mixtures and in imported finished products (e.g., articles). Unlike the Canadian approach, which focuses on a finite and manageable list of PFAS believed to be commercially active, EPA has defined the reporting rule’s scope using a “structural definition” that is estimated to be inclusive of an estimated 1,500 (if not substantially more) chemical substances. EPA also is requiring use of an online portal (CDX). When the regulations in the U.S. were originally promulgated, the reporting window (and CDX portal) was set to open November 12, 2024 and close May 8, 2025. The delay will result in the reporting period opening July 11, 2025 and closing January 11, 2026. The agency attributes the delay to budgetary constraints and technical challenges affecting development of the reporting software.

EPA’s announcement nearly coincided with the Biden administration’s release of the National Science and Technology Council (NSTC) Research and Development for PFAS (updated) PFAS Strategic Plan. This plan identifies the administration’s continuing goals for research needed to fill PFAS knowledge gaps and inform regulatory efforts for PFAS for the next five years. The NSTC’s plan is intended to enable EPA to:

• Understand PFAS exposure pathways to individuals and communities
• Address current PFAS measurement challenges through the development of technical tools
• Understand the toxicological mechanisms and potential human and environmental health effects and risks of PFAS exposure
• Develop, evaluate, and demonstrate technologies for the removal, destruction, and disposal of PFAS
• Identify PFAS alternatives and their human health and environmental effects

This action supports and enhances EPA’s PFAS Strategic Road Map and NSTC’s 2023 own updated research report — the newly released investigatory efforts and subject matters where further research is needed for short- and-long-term study to inform the federal government’s plans for further PFAS regulation. These include initiating studies of PFAS exposures in mixtures and potential interactions of PFAS and microplastics, petroleum constituents, metals, pesticides, and pharmaceuticals. EPA hopes to begin developing artificial intelligence tools to predict and estimate PFAS movement in environmental media.

For more information on these evolving developments, and for additional information on issues affecting the chemical industry, please see Arnold & Porter’s most recent edition of The Chemical Compound.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.