On March 10, 2022, a bill was sent to the Governor of Washington’s desk that significantly accelerates the state’s initiative to develop regulations for various consumer goods that contain PFAS. With increasing attention being given to PFAS in consumer goods in the media, scientific community, and in state legislatures, Washington’s bill takes direct aim at a variety of specific products. It is critical for companies anywhere in the manufacturing or supply chain for consumer goods to immediately assess the impact of the proposed PFAS legislation on corporate practices, and make decisions regarding continued use of PFAS in products, as opposed to substituting for other substances.  At the same time, companies impacted by the PFAS legislation must be aware that the bill poses risks to the companies involvement in PFAS litigation in both the short and long term.

Washington’s PFAS In Consumer Goods Legislation

Washington’s latest PFAS-related legislation, HB 1694, requires the state’s Department of Ecology (DOE) to name PFAS-containing firefighting gear a “priority product” under the state’s Safer Products For Washington initiative. The bill also allows the DOE to name as a “priority product” any product named in the 2021 PFAS Chemical Action Plan – namely, nonstick cookware, personal care products, cleaning agents, water-repellant clothing and gear, automotive products, and waxes and sealants for floors, skis, and cars. In addition, the bill allows the DOE flexibility to designate additional products as “priority products.”  Typically, the DOE adds products to the “priority” list every five years, so HB 1694 accelerates (if not outright eliminates) the five year waiting period.

The DOE would have until 2024 to evaluate alternatives for PFAS in the listed products and develop regulations.  Final regulations would be required by 2025.

Impact of PFAS In Consumer Goods Bill On Businesses

Washington’s legislation places a wide range of consumer products directly in the crosshairs with respect to PFAS, and give the DOE the flexibility to add more consumer products to the priority list. While other states have banned or otherwise regulated PFAS in certain specific consumer goods, Washington’s bill provides for a much broader range of regulated PFAS-containing products that virtually any state.

It is of the utmost importance for businesses along the whole cosmetics supply chain to evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate these compounds. One major point of contention among members of various industries is whether to regulate PFAS as a class or as individual compounds.  While each PFAS compound has a unique chemical makeup and impacts the environment and the human body in different ways, some groups argue PFAS should be regulated together as a class because they interact with each other in the body, thereby resulting in a collective impact. Other groups argue that the individual compounds are too diverse and that regulating them as a class would be over restrictive for some chemicals and not restrictive enough for others.

Companies should remain informed so they do not get caught off guard. States are increasingly passing PFAS product bills that differ in scope. For any manufacturers, especially those who sell goods interstate, it is important to understand how those various standards will impact them, whether PFAS is regulated as individual compounds or as a class. Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long term savings for companies and should be commonplace in their own risk assessment.