Washington State Department of Ecology proposes next tranche of Safer Products Program regulations to reduce PFAS in consumer products

Introduction

On September 18, 2024, the Washington Department of Ecology (the Department) shared a preliminary draft rule (Draft Rule) that would impose comprehensive restrictions and reporting requirements on manufacturers of 12 consumer product categories containing perfluoroalkyl and polyfluoroalkyl substances (PFAS).

As set forth in the proposed rulemaking, restrictions and reporting requirements apply to specific consumer products that contain “intentionally added PFAS” – meaning PFAS that serves an intended function in the final product or in the manufacturing of the product, or part of the product. If adopted, manufacturers must comply with strict reporting requirements for nine product categories: apparel (extended use), footwear, recreational and travel gear, automotive waxes, cookware and kitchen supplies, firefighting personal protective equipment (PPE), floor waxes and polishes, hard surface sealers, and ski waxes. Manufacturers would also be restricted from manufacturing, selling, or distributing three consumer product categories containing intentionally added PFAS: apparel (not extended uses), automotive washes, and cleaning products.

The Draft Rule represents the Department’s latest step in implementing the state’s Safer Products Program, which was amended in 2022 to require enhanced regulatory action to reduce PFAS in products. The Draft Rule seeks to update the program’s regulations to implement the Department’s proposed regulatory actions outlined in the final Cycle 1.5 Regulatory Determinations Report to the Washington Legislature submitted in May 2024.

Scope of the Draft Rule

The Draft Rule applies to persons who manufacture, distribute, sell (including, but not limited to wholesale, online, or retail) or offer to sell a priority consumer product that contains PFAS in or into Washington state. However, the rule carves out exceptions for three products: (i) consumer products previously excluded from Chapter 70A.350 Revised Code of Washington (RCW), (ii) consumer products transported or stored in Washington state as part of interstate commerce, and (iii) the recycling or disposal of existing stock.

Rebuttable presumption

Notably, despite no express product testing requirement in the Draft Rule, the Department will presume that the detection of any amount of total fluorine (TF) in a priority consumer product indicates the intentional addition of PFAS. Manufacturers, however, have the opportunity to provide evidence to rebut this presumption. To do so, manufacturers must submit a statement that PFAS were not intentionally added, along with a supporting statement with information, data, or other relevant information to support this conclusion.

Restrictions on intentionally added PFAS

Restrictions on intentionally added PFAS apply to three product categories:

• Apparel (not extended use): Effective January 1, 2027, no person may manufacture, sell, or distribute apparel that contains intentionally added PFAS. This restriction applies to accessories such as hats, gloves, and scarves made from natural textiles, synthetic textiles, technical textiles, and leather.


• Automotive washes: Effective January 1, 2027, no person may manufacture, sell, or distribute automotive washes that contain intentionally added PFAS. Automotive washes are products that clean the exterior of automotives such as the body, windshield, mirrors, lights, and grills. Additionally, automotives include boats, buses, cars, emergency response vehicles, motorcycles, recreational vehicles, and trucks.


• Cleaning products: Effective January 1, 2027, no person may manufacture, sell, or distribute cleaning products that contain intentionally added PFAS. Cleaning products include all-purpose cleaners; disinfectants; and cleaners for glass, bathrooms, dishes, and tiles.

Critically, the restriction would not apply to these products if manufactured before January 1, 2027 – an important “sell through” exemption for stakeholders with existing product stock.

The proposed restrictions would supplement existing restrictions previously implemented under the Department’s prior round of Safer Products Program rulemaking, which included:

• Aftermarket stain- and water-resistance treatments: Effective January 1, 2025, no person may manufacture, sell, or distribute aftermarket stain- and water-resistance treatments for application to textile and leather consumer products that contain intentionally added PFAS. This restriction does not apply to premarket topical chemical treatments applied during the manufacturing process.


• Carpets and rugs: Effective January 1, 2025, no person may manufacture, sell, or distribute (i) carpets and (ii) rugs, including carpeted mats, intended for either indoor or outdoor use that contain intentionally added PFAS.


• Leather and textile furniture and furnishings intended for indoor use: Effective January 1, 2026, no person may manufacture, sell, or distribute leather and textile furniture and furnishings intended for indoor use that contain intentionally added PFAS. This restriction does not include (a) leather and textile furniture and furnishings intended for outdoor use, and (b) leather and textiles sold separately and not as part of furniture and furnishings.

Reporting requirements

For additional product categories, the Draft Rule also would impose reporting requirements. Manufacturers that add PFAS for a technical or functional effect in a product would need to provide notice that the priority consumer product contains intentionally added PFAS and include the name of the chemical, its CAS Registry Number, the product category, the product component, a description of the function of the chemical, and the concentration range. Importantly, since the Department provides for no anonymity for the reporting party, and otherwise offers limited confidentiality protections under existing state law, manufacturers may face potential litigation risks as materials become publicly accessible. In accordance with WAC 173-337-060, notifications must be submitted by January 31, 2027, and annually thereafter by January 31.

The nine product categories subject to the reporting requirements (effective January 1, 2026) include:

• Apparel intended for extreme and extended use: Apparel includes items required by experts and professionals for use in extreme weather for extended periods of time.


• Footwear: Footwear includes items intended to protect the foot such as boots, sandals, shoes, and water shoes.


• Gear for recreation and travel: Gear for recreation and travel includes non-apparel items such as backpacks, bags, totes, luggage, panniers, sleeping bags, sleeping pads, tents, and climbing ropes.


• Automotive waxes: Automotive waxes include waxes used for cleaning automotives, as well as all-in-one formulas that contain automotive waxes.


• Cookware and kitchen supplies: These include durable houseware items that are used in homes and restaurants to prepare, dispense, or store food, foodstuffs, or beverages. Cookware and kitchen supplies also include baking molds, baking sheets, cooking utensils, grills, pots, pans, skillets, and trays. Internal electrical components are not included.


• Firefighting PPE: This includes any clothing worn by firefighters in the performance of their duties, such as jackets, pants, shoes, gloves, helmets, and respiratory equipment.


• Floor waxes and polishes: Floor waxes and polishes are intended to polish, protect, or enhance floor surfaces, and can be used on a variety of floor types including linoleum, stone, tile, vinyl, and wood.


• Hard surface sealers: Sealers intended for interior and exterior applications and used to seal hard, porous surfaces such as stone, unglazed tile, concrete, and wood.


• Ski waxes: Ski waxes include hot wax, spray wax, rub-on wax, and related tuning products for snow runners such as skis and snowboards.

Compliance and enforcement

Non-compliance with the restrictions or reporting requirements set forth in the Draft Rule could result in penalties, emphasizing the state’s commitment to environmental safety and public health. In accordance with chapter 70A.350W, a manufacturer violating any of its requirements is subject to a civil penalty not to exceed $5,000 for each violation in the case of a first offense. Manufacturers who are repeat violators are subject to a civil penalty not to exceed $10,000 for each repeat offense. However, the Draft Rule provides that a manufacturer may appeal a penalty to the pollution control hearings board.

Impact and next steps

The Draft Rule signals a proactive approach at the state level to address environmental and health concerns associated with PFAS while imposing fulsome restrictions and reporting requirements on industry members. Stakeholders are invited to provide public feedback on the draft requirements, compliance dates, and any other thoughts or information related to the new product categories by submitting comments before October 16, 2024. Suggestions for improving the draft rules and providing additional information or data to support concerns are strongly encouraged to facilitate the Department’s plan to introduce a formal draft rule with an accompanying formal comment period by Summer 2025.

DLA Piper’s PFAS Task Force closely tracks legislative and regulatory trends in the US and internationally. We help advise clients across industries in navigating the evolving regulatory landscape and designing compliance programs. Please contact the authors with questions or other inquiries.

12 new product categories subject to restrictions  and/or reporting requirements
for intentionally added PFAS