On May 18, 2021, a bill was signed into law related to Vermont PFAS legislation that is one of the most aggressive pieces of legislation related to PFAS in the country. The legislation (S 20) is similar to a version of the bill that was proposed in years past; however, unlike the prior bill, the 2021 bill was not hotly debated and passed the legislature without any resistance. Manufacturers of several types of products that contain PFAS must now comply with the legislation terms or face significant penalties. At the same time, companies impacted by the Vermont PFAS legislation must be aware that the bill poses risks to the companies involvement in PFAS litigation in both the short and long term.

What Does the Vermont PFAS Legislation Do?

The Vermont PFAS legislation would impose several significant restrictions with respect to PFAS, including:

1. Impose restrictions on the use, manufacture, sale, and distribution of class B firefighting foam containing PFAS, unless such foams are required by federal law (the bill also prohibits the use of PFAS firefighting foam for training exercises);

2. Impose restrictions on the production, sale, and distribution of food packaging to which PFAS have been intentionally added;

3. Impose restrictions on the manufacture, sale, and distribution of residential rugs and carpets to which PFAS have been intentionally added, as well as the use of after-market treatment products that contain PFAS;

4. Ban the manufacture, sale and distribution of PFAS-containing ski wax, if the PFAS was intentionally added; and

5. Include three types of PFAS (PFHxS, PFHpA, PFNA) on the list of chemicals of high concern to children.

While many of the provisions mirror PFAS legislation in other states, the provisions related to carpets, rugs, and ski wax would be the first of their kind in the United States. Earlier versions of the bill included PFAS as a class of chemicals (which would include several thousand PFAS) to the chemicals of high concern to children; however, the current bill includes just the three types of PFAS that Vermont already regulates in its drinking water.

Implications To Businesses From The Vermont PFAS Legislation

It is of the utmost importance for businesses along the whole 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. Regulators at both the state and federal level are setting drinking water standards and notice requirements of varying stringency. 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.