PFAS and consumer goods has received ever-increasing attention in the last couple of years, as private citizens, media, and certain litigation has focused more on the topic. Now, the Consumer Product Safety Commission (CPSC) enters the fray with a significant Request For Information (RFI) that companies in the consumer goods industry and supply chain should pay close attention to. While the Request is just that – a request and not a mandate – companies need to nevertheless consider that there may be some pros to responding to some degree to the CPSC request, yet at the same time balancing any potential cons of self-reporting. At the same time, companies must understand that while the CPSC RFI is not a new regulatory standard, it very well may be the precursor to regulatory standards or action.

PFAS and Consumer Goods – The CPSC Request For Information

The CPSC RFI asks anyone from the public, including companies, to provide information about PFAS used in consumer goods, as well as information available about the potential exposure that consumers may have from such goods. The RFI further asks for information related to possible adverse effects to human health stemming from PFAS used in consumer goods. As a starting point, though, the CPS also seeks public comment on a definition of PFAS in an effort to try to create a uniform definition for PFAS. On the latter point, the CPSC has noted that 16,229 PFAS have been identified and 863 of them are used or detected in consumer products, yet there remains debate on which of the chemicals among the 16,229 are truly PFAS and which are not. CPSC is seeking comments on these topics by November 20, 2023.

The CPSC RFI notes that the agency’s interest in the subject is due to potential exposure pathways to consumers from manufacturing processes, disposal of consumer products (which is often done via landfilling, which in turn could lead to PFAS leaching into drinking water), contact exposures by consumers through use of the products, and more indirect exposure pathways, such as inhalation of indoor dust or air potentially containing PFAS.

Impact of RFI On Businesses

It is often the case that companies decline to respond to RFI’s such as the CPSC’s PFAS and consumer goods RFI out of fear of disclosing information that could be considered trade secrets or that may lead to future litigation support for plaintiffs’ counsel. While these concerns are valid, it is important to understand that the RFI also presents opportunities for companies that may have some of the information sought by the RFI. This is especially the case with the request for help in reaching a CPSC definition for PFAS. There is little doubt that consumer advocacy groups will comment that any and all chemicals that resemble PFAS should be included in the definition. Yet, there may be valid scientific reasons for excluding certain of those chemicals from the definition. Similarly, with the CPSC seeking information related to exposure pathways from consumer goods, if companies have tested such pathways in the context of PFAS and their products, there might be benefit to sharing the information with the CPSC so the agency has a balanced view of the available science. Such decisions for disclosure, of course, should be carefully discussed internally prior to any such disclosure.

It is also important for companies to understand that one of the CPSC’s stated goals for putting forward the RFI is “reduction, and ultimately elimination, of PFAS use in consumer products and other applications is needed to reduce human exposure and associated adverse health outcomes.” This is an important disclosure of the CPSC’s mission in putting forth the RFI, as it indicates the agency’s interest in trying to establish more formal regulations (or potentially bans) for the use or presence of PFAS in consumer goods. While one course of action by the CPSC may be to establish bans or limits for PFAS in certain consumer goods, the RFI may also lead to statements or conclusions regarding exposure pathways for consumers that could increase risk for certain health impacts. Such conclusions, even if they do not lead to regulatory exposure levels, could nonetheless add fuel to the wave of PFAS-related personal injury litigation from consumer goods that we have predicted will arrive in the next couple of years. As such, companies should follow developments on the CPSC’s RFI closely to see how the current science is being reported to and considered by the CPSC.