Continuing Washington State’s push towards implementing one of the nation’s strictest chemicals laws, the Department of Ecology (Ecology) recently published its Draft Regulatory Determinations Report on certain products containing per- and polyfluoroalkyl substances (PFAS). These regulatory determinations, set to be finalized in June 2024, would guide Ecology’s future rulemaking on placing restrictions or reporting requirements on certain PFAS-containing products. These products include apparel and gear, firefighting PPE, cleaning products, automotive washes, waxes (for automobiles, floors, and skis), hard surface sealants, and cookware and kitchen supplies. Stakeholders should note which products might have reporting requirements or restrictions and provide comments to Ecology during the comment period, which expires on January 22, 2024.

Background

The Safer Products for Washington program is a four-phase cycle that repeats every five years. During the first phase, Ecology identifies priority chemicals and classes it will focus on. During the second phase, Ecology identifies priority consumer products that contain the identified priority chemicals or classes. During the third phase, Ecology determines whether it will take regulatory action by requiring reporting or imposing chemical restrictions. Finally, during the fourth phase, Ecology adopts rules to implement the regulatory actions it identified in the previous phase. Each phase offers opportunities for public comment to Ecology.

This regulatory determination is part of “phase three” of Ecology’s “Cycle 1.5” of implementing the Safer Products for Washington program. The governing statute was amended to instruct Ecology to proceed directly to phases three and four for certain priority products containing PFAS.

Ecology’s Draft Regulatory Determinations

Ecology’s Draft Regulatory Determinations Report sets the framework for how Washington is likely to regulate these PFAS-containing products in future rulemakings. In these draft regulatory determinations, Ecology makes one of three regulatory determinations for a given PFAS-containing product based on whether the product has safer, feasible, and available alternatives:

• Determine that no further regulatory action is required;
• Require the manufacturer to provide notice to Ecology that the product contains PFAS chemicals; or
• Restrict or prohibit the manufacture, wholesale, distribution, sale, retail sale, use, or any combination thereof, of PFAS in the product.

Ecology will likely propose a restriction if a product has safer, feasible, and available alternatives. If the product has no such alternatives, but a restriction would reduce a significant source of PFAS, Ecology will propose a reporting requirement instead. Both restrictions and reporting requirements will be implemented under “phase four” of this cycle. When determining whether there is an alternative to a product that is safer, feasible, and available, Ecology evaluates:

• Whether the PFAS is functionally necessary;
• The hazards of the priority chemical class;
• The hazards of the alternative; and
• Whether manufacturers use the alternative for the relevant application.

In addition to whether there are safer, feasible alternatives, Ecology may also consider the hazards of the priority chemical class, the criteria to be listed as a priority product, existing regulations from other states and nations, and any other relevant information.

The table below summarizes Ecology’s draft determinations concerning this cycle’s PFAS-containing products:

*Ecology did not determine if there were any safer, feasible, and available alternatives for hard surface sealants or cookware and kitchen supplies. Ecology intends to examine alternatives for these products in a later cycle.

Next Steps

Ecology is accepting comments on these draft determinations until January 22, 2024. Ecology has until June 2024 to consider comments and finalize its regulatory determinations.

Once the regulatory determinations are finalized, Ecology has until December 2025 to finalize rules under “phase four” to implement its regulatory determinations and place reporting requirements or restrictions on these priority products. This will include an intermediate step where Ecology proposes rules for public comment.

Product manufacturers and other stakeholders should be aware of these dates and take advantage of the opportunities to engage with Ecology.

Beveridge & Diamond's Consumer Products industry group works with U.S. and multinational companies that make, distribute, transport, or sell consumer products in a hyper-competitive and evolving consumer goods market. We help them identify, understand, and comply with complex regulatory requirements throughout the product lifecycle. For more information, please contact the authors.