CPSC Signals Interest in PFAS in Consumer Products

Key Takeaways

• What is happening? The Consumer Products Safety Commission (CPSC) published a request for information (RFI) on per- and polyfluoroalkyl substances (PFAS) used in consumer products, potential human exposures to PFAS associated with consumer products use, and alleged human health effects associated with these exposures. Comments to CPSC are due on November 20, 2023. The notice also announced the availability of a related CPSC-contracted white paper characterizing PFAS sources, uses, and regulatory trends. Although the CPSC RFI does not propose or contemplate any regulation, it signals potential CPSC restrictions of PFAS in consumer products in the future.
• What is the background? Last year, CPSC contracted with RTI International to (1) characterize PFAS in consumer products and identify uses, trends, and individual PFAS applications in consumer products; (2) identify domestic and international PFAS regulations and restrictions; and (3) summarize recent PFAS hazard, exposure, and risk assessments completed by authoritative bodies. The white paper was finalized earlier this summer, and now CPSC is requesting related information from all stakeholders. This comes on the heels of many recent laws and regulations that may impact PFAS in products, including a proposed PFAS reporting rule from the U.S. Environmental Protection Agency (EPA), laws in Maine and Minnesota restricting PFAS in all products, laws and regulations in states such as Colorado and Washington restricting PFAS in specific product categories (such as children’s products or certain textile products), and a proposal to restrict PFAS under the EU Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regulation.

Findings from the RTI International White Paper

In a CPSC statement about the white paper, the agency explained that the Organisation for Economic Co-operation and Development (OECD) “defines PFAS as fluorinated substances that contain at least one fully fluorinated methyl or methylene carbon atom (without any H/Cl/Br/I atom attached to it).” The agency then noted that the OECD later defined fifteen major groups of PFAS, and a more recent definition based on structure and percent fluorination was used to develop the PFASSTRUCTV5 inventory on EPA’s CompTox Chemicals Dashboard. CPSC stated that this inventory was the “primary list” of PFAS used in the RTI International white paper, though most of the PFAS mentioned in the white paper are “not yet placed” in one of the OECD’s fifteen groups.

The CPSC statement then explains how the white paper identified 16,229 PFAS, of which 863 had reported use or detection in consumer products, 387 had reported use information, 83 had information on exposure and human health risks, and 30 had information on policies and regulations. The agency also highlighted how data sources not explicitly considered in the contractor report (such as the CAS Registry, PubChem, TSCA Chemical Substances Inventory, and European Inventory of Existing Commercial Chemical Substances) “may increase or decrease the total number of PFAS chemicals and subsets of PFAS used in consumer products or with other defined characteristics.”

CPSC-Requested Information

The RFI lists three categories of information CPSC requests information on, with a focus on consumer products:

• Use or Potential Use of PFAS in Consumer Products. This category requests information on the definition of PFAS, including which substances should be included or excluded from consideration as a PFAS and which PFAS are considered as being in commerce. This category also requests information on specific PFAS used in consumer products; which specific PFAS and specific consumer products CPSC should prioritize in assessments of potential uses; consumer products or their materials that may be sources of PFAS; chemical identity, physical form, functional purpose, and levels/concentration of intentional uses of PFAS in consumer products; and similar information when PFAS may be present in consumer products other than for intentional functional uses.

• Potential Human Exposures to PFAS Associated with Consumer Products Use. This category requests information, such as from studies or data, related to the emission of PFAS from consumer products into the indoor environment; migration of PFAS from consumer products into bodily fluids or skin; specific exposure pathways from consumer product sources; PFAS biomonitoring; certain exposure information relative to ingestion of indoor dust, inhalation of indoor air, and ingestion of drinking water and food; and information from population groups that may use certain consumer products for a greater than average magnitude, frequency, or duration.
• Potential Human Health Effects. This category requests reports and underlying data for data sources that could inform whether individual PFAS, PFAS subclasses, or PFAS categories have the potential for human health effects. This includes relevant human or animal studies and new approach methodological studies such as in-vitro assays or in-silico predictions that report the relationship between exposures and observed effects.

Next Steps

CPSC noted that the RFI “does not constitute or propose regulatory action, but rather is intended to inform the Commission and the public.” However, given the current environment where PFAS in products are coming under increasing scrutiny from legislatures and regulators alike, the RFI could signal what is to come on this topic from CPSC. For example, the RTI International white paper recommends regulation as a next step since “additional regulations are necessary to protect human health and the environment, provide consumers with products that are safe for use, and ensure that industry and product manufacturers have clear requirements so that they can appropriately substitute PFAS with safer alternatives that meet performance standards.”

Beveridge & Diamond’s Chemicals Regulation practice group and Chemicals industry group provide strategic, business-focused advice to the global chemicals industry. We work with large and small chemical and products companies whose products and activities are subject to EPA’s broad chemical regulatory authority under TSCA and state chemical restrictions. Our Consumer Products and Product Stewardship, Global Supply Chains practices work 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 identify, understand, and comply with complex regulatory requirements throughout the product lifecycle. For more information, please contact the authors.