Articles

Minnesota Legislature Sends PFAS Bill to Governor for Signature

Categories: Government Affairs

On May 18, 2023, the Minnesota legislature passed a bill (HF 2310) that, when signed into law by the governor, will ban the use of perfluoroalkyl and polyfluoroalkyl substances (PFAS) in cleaning products and other product categories. For certain enumerated categories of products such as cleaning products, the ban will go into effect on January 1, 2025. For all other non-exempt products, the effective date would be January 1, 2032. HF 2310 will also require manufacturers and private label distributors of products containing intentionally added PFAS to notify the agency of such products and uses beginning January 1, 2026.

Product Prohibitions. Effective January 1, 2025, HF 2310 will ban the sale or distribution of the following products if the product contains intentionally added PFAS:

• Cleaning products
• Carpets
• Cosmetics
• Dental floss
• Fabric treatments
• Juvenile products
• Menstruation products
• Textile furnishings
• Ski wax
• Upholstered furniture.

It is important to note that the definition of cleaning products is broad and includes products used “primarily for domestic, commercial, or institutional cleaning purposes, including but not limited to an air care product, an automotive maintenance product, a polish or floor maintenance product.”

The term cosmetics includes products that are applied to the human body or any part thereof for the purpose of cleansing, such as body washes, and cleansing wipes. Fabric treatment is defined as a substance applied to fabric to give the fabric one or more characteristics, including but not limited to stain resistance or water resistance.

In addition, effective January 1, 2032, the sale or distribution of any new product containing intentionally added PFAS will be prohibited unless the Minnesota Pollution Control Agency (MPCA) has determined by rule that the use of PFAS in the product is a currently unavoidable use. The MPCA may also, even before 2032, prohibit product categories or uses if they contain intentionally added PFAS (not to be effective prior to January 1, 2025). Furthermore, if the MPCA has reason to believe that a product contains intentionally added PFAS and the product is being offered for sale in the state, the agency may direct the product manufacturer to provide the agency with testing results that demonstrate the amount of PFAS in each product.

Information Requirements. On or before January 1, 2026, a manufacturer of a product sold, offered for sale, or distributed in Minnesota that contains intentionally added PFAS must submit information to the MPCA that includes:

• A brief description of the product, including a universal product code (UPC), stock keeping unit (SKU), or other numeric code assigned to the product
• The purpose for which PFAS are used in the product and/or product components
• The amount of each PFAS substance
• Contact information for the manufacturer
• Any additional information requested by the MPCA.

A person may not sell, offer for sale, or distribute a product containing intentionally added PFAS if the manufacturer has failed to provide the information required. Please note that the law allows the MPCA to approve single submissions for groups or categories of products.

Of particular note, the definition of manufacturer is broad and includes the entity that actually manufactured or produced the product, but also includes any entity whose brand name is affixed to the product such as a distributor of private label products.

Minimal Exemptions. HF 2310 exempts very few products from the reporting requirements and eventual prohibitions. It exempts only (1) products for which federal law governs PFAS contents and preempts state laws; (2) firefighting foam; (3) food packaging; and (4) the sale or resale of used products. Pesticide (including disinfectant) manufacturers can fulfill the product reporting requirements by submitting the required information as part of the State’s annual pesticide registration and approval processes.

Looking Forward.  We expect that Minnesota Governor Tim Walz will soon sign HF 2310 and enact the bill into a law. When that happens, the cleaning industry will face significant compliance obligations that are compounded by the shortcomings of the law. Nonetheless, it is crucial that businesses obtain a head start on building awareness of this upcoming regulatory scheme and prepare in advance for compliance. This process includes:

1. Conducting a portfolio review for products that may contain intentionally added PFAS
2. If not already done, conducting a review of your business in Minnesota for relevant products
3. Planning for appropriate testing which may be required
4. Considering applying for a reporting extension
5. Starting to draft materials necessary for compliance.

About the Author.

ISSA Director of Legislative Affairs Bill Balek has more than 25 years of experience working with various legislative and regulatory organizations that create rules that have a direct impact on the cleaning products industry, including antimicrobial pesticide registration, hazardous material transportation, safety and health regulations, and general environmental laws.