Connecticut is making significant strides to phase out and ban
per- and poly-fluoroalkyl substances in various consumer and safety
products manufactured or sold in the state with the passage of Public Act 24-59 – An Act Concerning the Use
of PFAS in Certain Products.
This new law quickly bans PFAS-containing biosolids (wastewater
sludge) and implements a phased approach to ban certain consumer
and safety products that contain “intentionally added”
PFAS, with interim notice/labeling requirements to take effect
before the bans are in effect.
PA 24-59 primarily aims to protect public health by limiting
exposure to PFAS from common consumer and safety products to which
PFAS has been “intentionally added.”
That is, the law applies to products or a product component
where PFAS was deliberately added during manufacturing to perform a
specific function, as opposed to the incidental/unwanted presence
or introduction of PFAS.
Environmental Concerns
Importantly, PA 24-59 is broad and does not include any waiver
or exception provisions.
However, Gov. Ned Lamont and some legislators have indicated
that a waiver process may be added in future legislative sessions,
e.g., for products that cannot be replaced with a functionally
equivalent alternative that is made without the intentional
addition of PFAS.
For the uninitiated, PFAS are thousands of “emerging
contaminants” at the center of increasing health and
environmental concerns.
PFAS have been widely used in numerous commercial and industrial
applications where their resistance to liquids, heat and stains are
beneficial.
However, PFAS have recently gained national and international
attention for being linked to environmental and health risks,
including certain cancers, which has led to increased consumer
awareness and scrutiny, new federal and state laws and regulations,
and significant litigation.
Effects on Farmers, Firefighters
Starting Oct. 1, 2024, PFAS-containing biosolids or wastewater
sludge are prohibited from being used or sold in Connecticut.
Although the use of biosolids in Connecticut by farmers as a
cost-effective fertilizer is not extensive, PFAS contamination from
biosolids has raised significant and more widespread concerns in
other states (e.g., Maine), resulting in the closure of multiple
farms.
Connecticut farmers applying biosolids should consider ceasing
or phasing out the practice now, to be ready for the Oct. 1, 2024
deadline.
Starting Jan. 1, 2026, manufacturers or retailers of
firefighting “turnout” gear containing intentionally
added PFAS must notify the consumer at the time of sale that the
gear contains PFAS and the reason PFAS were added.
With this law, Connecticut is the first state to prohibit
intentionally added PFAS in certain firefighting gear.
However, PFAS-free alternatives are not yet widely available and
are more expensive — and importantly, their protective
qualities are still being evaluated.
Not surprisingly, it appears only a handful of fire departments
across the country have started voluntarily purchasing PFAS-free
gear.
If they haven’t started already, fire departments should
begin evaluating options to phase out and/or replace older
equipment to ensure continuous emergency response preparedness and
firefighter safety.
Notably, Connecticut firefighters recently filed a lawsuit
against various manufacturers of PFAS.
Effects on Manufacturers, Distributors, Retailers
Starting Jan. 1, 2026, manufacturers, distributors and sellers
of severe wet-weather apparel containing intentionally added PFAS
must include the statement “Made with PFAS chemicals” if
the product contains intentionally added PFAS.
Manufacturers are primarily responsible for labeling unless the
wholesaler or retailer agrees to assume this responsibility.
Starting July 1, 2026, manufacturers, distributors, and sellers
of consumer items (e.g., rugs/carpets, cookware, cosmetic products,
dental floss, children’s products, feminine products)
containing intentionally added PFAS must label these products with
the statement “Made with PFAS chemicals” if the product
contains intentionally added PFAS.
Similarly, the wholesaler or retailer can agree to assume this
responsibility from the manufacturer.
Additionally, with respect to the consumer items only,
manufacturers must provide prior written notice to
Connecticut’s Department of Energy and Environmental
Protection, detailing the PFAS’ function, chemical composition,
quantities, and types.
Manufacturers must adhere to the notice and labeling
requirements to maintain production of severe wet-weather apparel
and specified consumer product categories in Connecticut.
Failure to comply with these requirements would prohibit sales
within the state, including via e-commerce.
Starting Jan. 1, 2028, the manufacture, distribution or sale of
the regulated consumer and safety items containing intentionally
added PFAS will be prohibited regardless of labeling, notice, or
disclosures.
As a result, we recommend manufacturers, distributors and
retailers begin now to identify alternative products and
technologies that eliminate intentionally added PFAS in the
products they make and sell.
Notably, Connecticut has joined a handful of other states (e.g.,
California, Colorado, Maine, Minnesota, Vermont, and Washington)
with similar bans on these categories of products.
Act Now
In light of these rapidly developing regulatory requirements and
impending bans on certain products that include PFAS (which list
will likely grow in coming years), it would be prudent for
manufacturers, distributors and retailers to take the following
steps:
- Review of Supply Chain Management: Conduct a
product lifecycle assessment to identify potential avenues through
which PFAS may (intentionally and/or unintentionally) enter the
production process, including water supplies and processing
materials. Request information from suppliers regarding what types
of PFAS may be intentionally added and to what extent. Evaluate
non-PFAS containing alternative supplies and develop phase-out
timelines and implementation plans, as necessary. Be prepared for
similar requests from downstream supply chain partners. - Update Labeling and Reporting: Prepare the
relevant labeling, disclosures and reports regarding intentionally
added PFAS. - Evaluate Whether to Sample: Given the complex
and inconsistent PFAS laws and regulations, parties should
coordinate with experienced environmental attorneys and consultants
when evaluating whether to voluntarily test products or production
areas for PFAS. - Analyze Insurance: Coordinate with an
experienced insurance broker and legal team to review
existing/prior insurance policies to evaluate what
coverages/protections may be available for actual or potential PFAS
claims associated with prior products, operations or properties,
i.e., perform an “insurance archaeology assessment.” If
and where available, negotiate tailored environmental insurance
that may provide future coverage for certain PFAS-related claims
(whether for some or all of cleanup, property damage and/or bodily
injury damages). - Manage Public Relations: Prepare draft
communications “holding” statements to stakeholders such
as suppliers and customers that can be adjusted as necessary to any
incident and quickly deployed in response to potential PFAS public
relations issues.
Federal Standards
This state-level action follows two recent important changes at
the federal level with respect to the regulation of PFAS, i.e., the
U.S. Environmental Protection Agency recently set nationwide enforceable drinking water standards
under the Safe Drinking Water Act for certain PFAS and designated two PFAS as hazardous substances under
the Comprehensive Environmental Response, Compensation, and
Liability Act.
Although the EPA’s drinking water standards have recently
been challenged in court, these two highly anticipated EPA rules
are having a ripple effect across the country on the management of
PFAS risks and liabilities for the regulated community.
Big picture, as PFAS-related risks become better understood and
laws and regulations evolve across jurisdictions, it will be
critical to proactively develop a thoughtful risk management plan
for anyone involved in markets and industries that will be impacted
by the rapidly evolving legal landscape applicable to PFAS.
Connecticut is one of the most regulated states with respect to
PFAS, particularly with this phased out ban. We anticipate that
other states will soon follow suit by drafting similar laws.
To take poetic license with an old adage, the bottom line for
PFAS is: “PFail to plan, plan to PFail.”
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.