Proposed Massachusetts Legislation Would Phase Out PFAS and Create Remediation Fund
Two bills introduced in the Massachusetts legislature would ban nearly all products containing intentionally added PFAS sold or distributed in the Commonwealth by 2030, with some categories of products banned by 2026. The legislation would also require that manufacturers register PFAS-containing products in a state-created database, label PFAS-containing products by 2026, and test certain products for unintentionally added PFAS by 2030. The corresponding bills of An Act to Protect Massachusetts Public from PFAS are SD 2053 and HD 3324.
What You Should Know
It is important that product manufacturers, distributors, and wholesalers understand the scope of the legislation, identify their respective products to which the legislation would apply, and consider whether an exemption may be available.
The legislation would ban the sale or distribution of food packaging with intentionally added PFAS on January 1, 2026, with no exemptions. The legislation would ban the sale of child passenger restraints, cookware, fabric treatments, personal care products, rugs and carpets, upholstered furniture, and children’s products with intentionally added PFAS on January 1, 2026, and ban all other products with intentionally added PFAS on January 1, 2030.
For products other than food packaging, the legislation contains two potential exemptions: (1) where the state determines the use of PFAS to be a currently unavoidable use, a status which appears to be renewable every three years; and (2) the sale or resale of used products.
The bills define PFAS as “a class of fluorinated substances that contain at least one fully fluorinated methyl or methylene carbon atom.” The phrase “intentionally added” PFAS is defined to include those products to which PFAS is added to provide a specific characteristic, appearance, or quality, or to perform a specific function. This includes PFAS that are chemical breakdown products or derivatives of an added chemical that also have a specific function.
The legislation would require the Commonwealth to create a publicly accessible PFAS database to collect information about PFAS and products or product components that contain PFAS by 2026. Once created, manufacturers of products or components with intentionally added PFAS that are sold, distributed, or imported into Massachusetts must register the product in the database. Manufacturers would have to provide detailed information about their products, including:
- product descriptions;
- the specific PFAS compounds in the product or component;
- the amount or numbers of the product or components sold, delivered, or imported to the state;
- and the contact information of the manufacturer.
The legislation would also require that, by 2026, manufacturers label products registered in the database to disclose the presence of PFAS. The legislation includes an exemption to the labeling requirement for products that are too small to label or otherwise cannot be labeled due to the lack of packaging or lack of tag or other attachments.
Finally, the legislation would require that by 2030, manufacturers of certain consumer products (child passenger restraints, cookware, fabric treatments, personal care products, rugs and carpets, upholstered furniture, and children's products) test for the presence of unintentionally added PFAS.
The PFAS Remediation Trust Fund & Public Awareness Campaign
The legislation would also require the creation of a (1) PFAS Remediation Trust Fund to provide grants for municipalities and water systems to remediate PFAS contamination in drinking water, groundwater, and soil; and (2) public awareness campaign about the health effects of PFAS and products containing PFAS.
The Trust Fund would be funded, in part, by the amounts the Commonwealth recovers in connection with claims relating to the manufacture, marketing, and sale of PFAS-containing Aqueous Film Forming Foam. It also would require Trust Fund grant applicants to have “made and will make reasonable efforts to obtain and use funds from any liable or potentially liable third party,” other than public fire departments.
The legislation also would include a public health awareness component, largely to be undertaken by the Commonwealth, specifically promoting education in environmental justice populations about the health effects of PFAS, exposure pathways, products containing PFAS, citizen involvement under the Massachusetts Toxics Use Reduction Act, and state assistance for PFAS remediation.
B&D's robust Chemicals and Litigation practices help companies and trade associations navigate the increasing regulation of emerging contaminants, including PFAS. Our Massachusetts office frequently assists clients in commenting on, and bringing administrative challenges to, EPA rulemakings. We also advise on TRI reporting and all aspects of chemical regulation under TSCA and other federal and state chemical regulations. For more information, please contact the authors.