No treats, too many tricks, for PFAS this Halloween


In a major move by California that may be but a harbinger of a dramatic sea change in banning or severely restricting the inclusion of hundreds of chemicals present in every-day consumer goods, California just imposed upon the consumer product industry (culminating, at least most likely for 2021, right before the end of October), a sweeping range of bans that likely will fundamentally disrupt the California consumer product economy.

Ostensibly driven by concern over the presence of PFAS and other chemicals loosely included in that family of compounds colloquially referred to as “forever chemicals,” and even in the absence of developed or well-understood science assessing the potential for human health risk, Governor Newson signed four bills in just one day in October that established new laws affecting food packaging, cookware and children’s mattresses, sets, strollers and the like, on the heels of the enactment of additional legislation and regulation passed earlier this year and last that has progressively been expanding both the scope and the magnitude of these impending bans and restrictions on the sale of consumer and commercial products containing PFAS in California.

There is no real question that the science surrounding PFAS, for example, is in its infancy – as observed even by the Agency for Toxic Substances and Disease Registry (ATSDR):

“Scientists are still learning about the health effects of exposures to mixtures of PFAS … more research will help scientists fully understand how PFAS affect human health.”

By contrast, at the federal level, the USEPA has chiefly dedicated its efforts to addressing the presence of PFAS and other so-called “legacy chemicals” within underground drinking water supplies, a core mandate with which the USEPA is charged by Congress, underscoring the impactful, yet potentially premature and disruptive nature of the recent California action, as it is aimed not at groundwater remediation but rather at a broad swath of manufacturing, commercial, and retail enterprises that likely do not know – and, moreover, likely cannot feasibly ascertain, whether their products are even subject to the new laws.

In a pronouncement by USEPA Administrator Michael Reagan that accompanied the much-heralded release on October 18 of the USEPA’s “PFAS Roadmap,” Administrator Reagan explained that the USEPA is “laser focused” on developing a “comprehensive, national PFAS strategy,” but not a reckless one. In fact, a cornerstone of the PFAS Roadmap is a multi-year strategy deploying a measured approach to refining the necessary scientific research while incorporating appropriate policies involving stakeholders affected by the PFAS Roadmap. Some insiders believe that the complexity of this task will take several years, at least, to be developed.

Not so in California.

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Retail Consumer Products Law, 17 November 2021