By James Pollack, OIA Clean Chemistry and Materials Coalition Legislative Advisor, Attorney at Marten Law
In October 2023, EPA finalized a rule that will require reporting on PFAS in all articles manufactured or imported into the United States from January 1, 2011 to December 31, 2022. You can view the rule here.
The final rule, adopted under the Toxic Substances Control Act, establishes this one-time reporting requirement. Manufacturers and importers of any articles containing PFAS must investigate and certify to EPA the amount of PFAS that they have manufactured or imported into the United States during the reporting period. The specific content of the report for each year will include the following information:
1). Chemical information such as:
a). Chemical identity of the PFAS in the article (the specific chemical name, if known, or otherwise a generic name or description of the PFAS if the specific chemical name is confidential business information or unknown)
b). Chemical identification number
c). Trade name or common name, if applicable, of the chemical
d). Representative molecular structure for any PFAS not in Class 1 of the Toxics Release Inventory
2). Import production volume of the imported article (in units or weight)
3). Industrial processing and use of the article, if any
4). Consumer and commercial use of the article, if any (e.g., product category, functional use of category, maximum PFAS concentration in product, whether children are intended users)
The above information reflects a more streamlined form available to article importers. Domestic manufacturers have a more detailed reporting obligation.
Who is covered under the new PFAS Reporting Rule?
The PFAS Reporting Rule covers nearly all importers and manufacturers. It only offers a narrow set of exemptions for products like pesticides, food, drugs, cosmetics, medical devices, as well as municipal waste importers. Otherwise, reporting is required.
How hard do you have to work to collect this information?
The due diligence standard for collecting information is “to the extent it is known or reasonable ascertainable.” That includes “all information in a person’s possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know.” Manufacturers and importers may also make reasonable estimates based on other information in their possession. EPA has issued several guidance documents further elaborating the standard.
What can I do about it?
Build a team with the knowledge and skills necessary to engage in this search. Appoint a team leader who can coordinate the search. Include a cross-section of business functions that may have knowledge of where to find relevant information—that may include product designers, supply chain relationship managers, marketers, and IT department members. Bring in outside expertise, including legal support, to help engage in this record search as well as to support in the documentation of the search. Make a comprehensive search plan, and document the search and conclusions in case that information is needed in the future.
What if my suppliers have the information?
It may be the case that your brand does not know the chemical content of your product, even if you know (or suspect) that the product contains PFAS. This can particularly be true for article importers, or those who work with specialized chemical suppliers that use proprietary chemistries. The PFAS Reporting Rule provides an entirely new process for joint reporting where a reporter can identify a relevant supplier that would be better positioned to provide EPA with information on the chemical content of the relevant product. Depending on the results of your due diligence efforts, joint submission may be the best path forward to provide responsive information to the agency.
Will my reported information be made public?
EPA plans to make portions of the information public so that state and federal agencies may set priorities for regulation and to help consumers avoid specific products. Whether or not EPA makes records public on its own, submissions may become subject to public records requests. EPA expects that the PFAS data it collects could potentially be used by the public, including consumers wishing to know more about the products they purchase, communities with environmental justice concerns, and government agencies to take appropriate steps to reduce potential risk. As a result, your brand may consider whether to submit a confidential business information (CBI) claim to protect submitted information.
What is the timeline for complying with this rule?
Overall, about 18 months. The submission period opens on November 12, 2024, with the general submission deadline on May 8,2025. Certain small manufacturers and importers will receive an additional six months to comply.
How can OIA support me?
We at OIA are committed to supporting members as they engage in this reporting process. OIA will keep its membership up to date on any developments and is looking to develop a guide to help brands understand their reporting obligations. Look out for that guide in the coming months.
Need support keeping up with chemical reporting rules and evolving sustainability legislation? Join OIA’s Clean Chemistry and Materials Coalition to access advice from legislative and chemicals experts along with a community of other outdoor brands, manufacturers, suppliers, and retailers working to eliminate and replace harmful chemicals from their supply chains.
About James Pollack
James Pollack is an attorney at Marten Law based in Seattle, WA, whose practice focuses on consumer product regulatory compliance, emerging contaminants, and environmental review. James leads the firm’s consumer products regulatory practice and helps consumer product manufacturers in a wide array of industries that are working to understand the complicated and shifting regulatory and litigation environments surrounding emerging contaminants. He has extensive knowledge on PFAS regulatory compliance at the federal and state level. James’s clients include textile and apparel manufacturers, outdoor recreational product manufacturers, food product manufacturers, and retailers. He also works with industry associations to update membership on regulatory developments.
Read more from James on PFAS:
PFAS PHASE-OUT: 5 KEY STEPS FOR YOUR OUTDOOR BRAND
Can Orange Juice Claim to be Green?
PFAS in Consumer Products are Targeted by State Regulators and Class Action Plaintiffs
What Is in EPA’s Billion Dollar PFAS Reporting Rule?
California Bans PFAS in Apparel, Textiles, Cosmetics
Washington is Latest State to Ban PFAS in Consumer Products
Regulation of PFAS in Consumer Products
