You can’t miss PFAS — the looming initialism for per- and polyfluoralkyl substances; it’s in the news, it’s in your waterproof jacket, there’s a good chance it’s in your drinking water. And while government agencies, lawmakers, scientists, and manufacturers may all have a shared understanding of what we mean when we talk about PFAS, the lack of a universal definition for this family of compounds creates barriers to setting effective policy regulating their creation, application, and disposal.
PFAS have attracted significant regulatory attention in the past several years, resulting in bans on the inclusion of intentionally added PFAS in a wide variety of products including firefighting foams, textiles, children’s products, and food packaging. In July 2021, the State of Maine became the first state in the country to enact an outright ban of PFAS when the Maine Legislature enacted Public Law c. 477, An Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution (38 M.R.S. §1614). This new law requires manufacturers of products containing intentionally added PFAS to report the presence of those PFAS to the Maine Department of Environmental Protection (MDEP), and prohibits the sale of carpeting, rugs, or fabric treatments containing intentionally added PFAS, beginning on January 1, 2023. The law further prohibits the sale of any product containing intentionally added PFAS, unless the use of PFAS in the product is specifically designated as a currently unavoidable use by MDEP, beginning on January 1, 2030.
The legislature of the State of Minnesota recently passed a bill that is very similar to Maine’s law. It provides for notification requirements by January 1, 2026, and bans the sale or distribution of any new product containing intentionally added PFAS starting January 1, 2032, unless the Minnesota Pollution Control Agency (MPCA) determines that the use of PFAS in the product is unavoidable. The MPCA may also, even before 2032, prohibit product categories or uses if they contain intentionally added PFAS (not to be effective prior to January 1, 2025).
Lack of universal definition for PFAS creates conflict
While promulgated with the good intention of mitigating pervasive PFAS contamination found in the environment today, there are potentially unintended consequences of the law because of how PFAS is defined. There is no universal definition of PFAS, and different federal and state regulatory agencies and legislatures have defined PFAS in a variety of ways.
With respect to Maine’s PFAS reporting requirement and bans, PFAS is defined in 38 M.R.S. §1614 (1)(F) as, “…substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” This definition is also utilized in the bill currently in consideration in Minnesota. However, fluorine is also found in many products and compounds that are not generally considered to be PFAS but fall under PFAS as defined in 38 M.R.S. §1614 (1)(F).
For example, 36 of the most widely prescribed pharmaceuticals in the United States contain at least one fully fluorinated carbon atom, including Lipitor (the most widely prescribed prescription medication in the United States), Flonase, Prozac, and Celebrex.
Many widely used refrigerants also fall under the definition of PFAS in in 38 M.R.S. §1614 (Maine has also banned many hydrofluorocarbon refrigerants, which frequently also fall under the definition of PFAS). R-1234yf (2,3,3,3 tetrafluoropropene) is the most widely used refrigerant in autos today due to the lower global warming potential relative to other widely used refrigerants. However, R-1234yf contains a fully fluorinated carbon atom and thus also falls under the definition of PFAS in 38 M.R.S. §1614.
A recent report by the Environmental Working Group found that there are 1,400 pesticides currently approved for use in the State of Maine that also contain an ingredient with at least one fully fluorinated carbon atom, and thus are also considered PFAS as defined in 38 M.R.S. §1614.
Proactive exemptions needed
Alternative PFAS definitions generally do not solve the challenge; for example, the pharmaceuticals Perflubron (used as a contrast agent in magnetic resonance imaging) and Perflexane (used as a cardiac ultrasound contrast agent) fall within most other commonly used definitions of PFAS, which generally include two or more adjacent, saturated, fully fluorinated carbons and/or a trifluoromethyl group (-CF3) as part of the definition.
Likely the most efficient and effective solution is to provide legislative exclusions to products such as pharmaceuticals, refrigerants, and pesticides that fall under the definition of PFAS but are not generally considered PFAS or have essential uses. This is permitted under 38 M.R.S. §1614 (5)(C), which states, “Products in which the use of PFAS is a currently unavoidable use as determined by the department may be exempted by the department by rule.” However, this exclusion should be written into the bill before it becomes law.
As currently written, 38 M.R.S. §1614 requires that drug makers and pharmacies manufacturing and distributing many commonly prescribed medications, farmers legally applying pesticides at their fields, and auto manufacturers and makers of home and business refrigerators, freezers, and air conditioners, may be required to report the presence of PFAS (as defined in 38 M.R.S. §1614) to MDEP. Furthermore, those entities may be banned from selling those products if exclusions are not incorporated by January 2030.
Writing appropriate exclusions into the law now will avoid uncertainty and potential future complications associated with passing amendments and the time required for regulatory agency determinations and policy promulgation.