In the aftermath of the COVID-19 pandemic, Massachusetts has focused on the promotion of health and safety of the people of the Commonwealth like never before. Pending before the Massachusetts legislature are two bills which clearly highlight an overarching emphasis of the importance of health and safety in the Commonwealth of Massachusetts.

The two bills pending in the Massachusetts state legislature, SB 1356 and HB 2197, would ban the addition of PFAS to a wide variety of products sold and distributed throughout Massachusetts. The proposed legislation aims to reduce and mitigate the harmful impact of PFAS in Massachusetts.

What are PFAS?

Per- and polyfluoroalkyl substances, commonly referred to as “PFAS,” are a class of thousands of synthetic chemicals used in industry and consumer products. PFAS are added to products for a variety of reasons, which include increasing heat resistance, providing antistick properties, and even preventing stains. However, exposure to PFAS can cause a variety of harmful health effects, including: cancer, liver damage, high cholesterol, immune system compromission, low birthweight, newborn death, birth defects, and delayed development.[1] PFAS are commonly referred to as “forever chemicals” because they do not break down in the environment or the human body. [2] The adverse health effects from PFAS exposure and how often they are used in consumer products is a trending topic throughout the nation.

Key Aspects of the Proposed Legislation

Establishment of a PFAS Remediation Trust Fund

  • The proposed legislation includes the enactment of a PFAS Remediation Fund which would be used to alleviate impacts of PFAS contamination in drinking water, groundwater, and soil in Massachusetts; including both private well owners and public water systems.

Public Awareness Campaign

  • The legislation incorporates the development of a multilingual outreach program to promote education and awareness surrounding PFAS contamination throughout Massachusetts. The program would include the distribution of educational materials regarding the possible adverse health effects of PFAS exposure and the avenues through which someone may have been exposed. The campaign will also highlight state assistance programs for PFAS remediation.

Ban of PFAS and Prevention of Future Contamination

  • The crux of the proposed legislation is to ban the future use of PFAS in Massachusetts. If the legislation passes, manufacturers, distributers, wholesales, and retailers of specific categories of consumer products will be prohibited from distributing products to which PFAS have been intentionally added by 2026. The specific consumer products include: child passenger restraints, cookware, fabric treatments, personal care products, rugs and carpets, upholstered furniture, and children’s products.[3] The sale and distribution of all other products, not previously specified, with intentionally added PFAS are to be ban by 2030.
  • To prevent further and perhaps unintentional use of PFAS, the legislation will also require the previously mentioned specific consumer product category manufacturers to periodically test for the presence of unintentionally added PFAS. [4]
  • Notably, there is a temporary exemption if it is determined that the use of PFAS in the product is currently unavoidable. The temporary exemption status is granted in intervals of no more than three years.[5]

PFAS Product Registry

  • By June 1, 2026, the manufacturers of products with intentionally added PFAS shall register the PFAS and/or product information on a publicly accessible reporting platform which will include specific information about the product, including but not limited to its use and PFAS composition.

Future Implications

The mere introduction of this legislation is enough to promote businesses in Massachusetts to make some significant changes. If the legislation passes, many businesses will need to adjust their practices, change formulas, change their manufacturers or distributors, etc. However, even if the legislation does not pass, it’s introduction alone has likely prompted consumers to become more aware of what is actually in their products, which could translate into businesses independently acting to remove the addition of PFAS to their products.

Data regarding PFAS exposure and potential harmful effects is quickly growing. The evolving evidence of adverse health effects from PFAS exposure could also eventually result in an increased volume of lawsuits alleging harm from exposure to PFAS.

Adler Pollock & Sheehan’s attorneys are monitoring this proposed legislation and can assist individuals and/or business organizations navigate the legal implications this legislation may have.

 

[1] CDC – Agency for Toxic Substances and Disease Registry, https://www.atsdr.cdc.gov/pfas/health-effects/index.html. Page Last Reviewed: November 1, 2022.

[2] Morgan Mc-Fall Johnsen, EPA Cracks Down on ‘Forever Chemicals’ in Tap Water: What PFAS are, Where They Are, and Why They’re Harmful, Business Insider (Mar 14, 2023).

[3] There is a temporary exemption if it is determined that the use of PFAS in the product is currently unavoidable.

[4] The consumer product categories to be tested for the unintentional addition of PFAS include: child passenger restraints, cookware, fabric treatments, personal care products, rugs and carpets, upholstered furniture, and children’s products.

[5] The proposed legislation specifies that the intentional addition of PFAS to food packaging is prohibited in any amount.

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