The Global Race on PFAS Regulation: What US Companies Need to Prepare For Now — A Conversation with Lindsay A. Holden, Ph.D. and Carla N. Hutton
This week, I had the pleasure of speaking with my colleagues, Carla N. Hutton, Senior Regulatory Analyst for B&C, and Lindsay A. Holden, Ph.D., DABT, Senior Toxicologist/Regulatory Scientist for B&C and The Acta Group (Acta®), our consulting affiliate. We discuss the relentless pace of state per- and polyfluoroalkyl substances (PFAS) regulations. For those expecting a slowdown, think again.
Perhaps in response to perceived inaction at the federal level, over half the states are engaged in PFAS notification and restriction regulations. This is unsurprising. Perhaps what is surprising is how different state restrictions are and how difficult it is to prepare for and understand how to comply with each. We seek to lessen the confusion by discussing the state of PFAS restrictions, focusing on key state differences, and offering a few tips on staying ahead of the PFAS curve.
TRANSCRIPT:
This podcast transcript has been lightly edited for accuracy. It is an approximation of the podcast audio, and the audio recording remains the definitive record.
Lynn L. Bergeson (LLB): Hello, and welcome to All Things Chemical, a podcast produced by Bergeson & Campbell (B&C®), a Washington, D.C., law firm focusing on chemical law, business, and litigation matters. I am Lynn Bergeson.
This week, I had the pleasure of speaking with my colleagues, Carla Hutton, Senior Regulatory Analyst for B&C, and Dr. Lindsay Holden, Senior Toxicologist and Regulatory Scientist for B&C and The Acta Group (Acta®), our consulting affiliate. We discussed the relentless pace of state PFAS (per- and polyfluoroalkyl substance) regulations. For those of you expecting a slowdown, think again. Perhaps in response to perceived inaction at the federal level, over half the states are engaged in PFAS notification and restriction regulations. This is unsurprising. Perhaps what is surprising is how entirely different state restrictions are and how difficult it is to prepare for and understand how to comply with each. We seek to lessen the confusion by discussing the state of PFAS restriction, focus on key state differences, and offer a few tips for staying ahead of the PFAS curve. Now, here’s my conversation with Carla Hutton and Dr. Lindsay Holden.
Lindsay and Carla, I’m just thrilled to have you in the studio today for this very important and timely conversation about PFAS.
Lindsay A. Holden (LAH): Happy to be here this morning.
LLB: Great, Lindsay. Carla?
Carla N. Hutton (CNH): I love starting a week off with PFAS first thing in the morning.
LLB: Well, why should today be any different, right?
CNH: Minnesota was working over the weekend, so nobody has any time off.
LLB: No, not from PFAS. I did see the exchanges of e-mail on the Minnesota situation, which is very, very topical right now. But Carla, I know you in particular — I swear to God, you must dream of PFAS requirements. Your practice includes much more than PFAS, but over the last 18 months, two years, it seems that it’s just been commanding a huge percentage of your time. To start things off, what do you wish listeners to take away from this conversation of all things?
CNH: Assumptions are dangerous. Whether it’s assuming that the federal exemptions from TSCA reporting will apply at the state level or assuming that complying with one state’s requirements means compliance with all other states. Minnesota will require that intentionally added PFAS and medical devices be reported, and that reporting deadline is July 1, 2026. But, as we know, under the TSCA PFAS reporting rule, medical devices are exempt from reporting. Meanwhile, New Mexico has a January 1, 2027, reporting deadline, at least at the time of this recording. Under the statute, New Mexico can waive that requirement if substantially equivalent information is publicly available. But we don’t have any guidance about what substantially similar means. Minnesota and New Mexico have very similar, but not identical, definitions of intentionally added. So just on the basis of two to four words, PFAS contaminants do not have to be reported in Minnesota, but in New Mexico, if the PFAS are expected, so I interpret that to mean if the contamination is a known issue, then it has to be reported.
LLB: We’re going to get to some of these various unique and disparate state reporting requirements, but I think your opening comment is well stated. Assumptions are very, very dangerous, and states seem to be priding themselves on being very specific, very unique, and not necessarily interested in emulating states right next door.
Lindsay, you are a toxicologist, and as a scientist, I’m guessing the diversity of regulatory approaches and the diversity of unique PFAS species — and how this global approach to the regulation of PFAS writ large is frustrating at some level. Or maybe I’m misreading you as a scientist.
LAH: As a scientist — as a toxicologist — I love when there is one correct answer and we can know what the truth is. In the PFAS space, there just is no one single answer. Carla really hit a home run — first comment about watch your assumptions, because that’s a big challenge in the PFAS space is that, A, there’s no single definition of PFAS. So the OECD [Organisation for Economic Co-operation and Development] definition of PFAS says if you have a single carbon that’s fluorinated, that’s a PFAS. Anything out of that initial definition, it can be defined as a PFAS. In the United States, the EPA (Environmental Protection Agency), for their reporting rule, they require two fluorinated carbons. It’s a little more complicated than that, but that’s the basis of the definition. In the states, it’s a — I call it a coat of many colors — where it could be as simple and broad as a single fully fluorinated carbon. States may just have a list of “Here are the PFAS to report,” or it could be a hybrid of both, so that’s confusing. Then there’s also — on the science side — just the definition of what is a PFAS. Which PFAS have inherent hazard based on their physicochemical properties? That is not a one-for-one answer for all PFAS. We only have data on very few PFAS.
That’s a huge gap that’s really frustrating to me. We’re painting — the global we — are painting a very broad picture of “All PFAS fall into a bucket of hazardous,” and that’s not accurate. That’s frustrating to me as a scientist that we’re living in this gray space and not using discernment to understand the different hazards across the PFAS space.
LLB: Right. And frustrating to me as a lawyer, given the diversity of species within the class of PFAS, however one defines it. I mean, the universe consists of over 10,000 under the OECD definition, fewer under the EPA definition. Most states are embracing the OECD definition with some annoyingly frustrating variations on a theme. To the extent there are even chemicals being considered PFAS that are not technically fitting any definition.
I was thinking back on the Olympics — several contestants in some of the skiing events I think were disqualified based on PFAS, or use of PFAS on their skis. But when you take a closer look, as we did in our blog of several weeks ago, it wasn’t even PFAS. If I’m reading that correctly, it was a fluorine content used as a proxy for PFAS. Does that invite an even different level of confusion in PFAS regulation and how it’s interpreted? What is TOF, for example?
LAH: That’s a good question. TOF is total organic fluorine. In the example, I am enjoying when PFAS hits the popular news: this Olympic PFAS ban. The skiers and snowboarders here, there was a hit from the spectrophotometric measurement of a fluorine-carbon bond that was detected on their skis or snowboards. In this case, it’s similar to TOF in that you’re just looking for the presence of this bond: “Is it there?” — which is not identifying an individual PFAS. It’s not giving you quantitative value, how much? Just the present, absent, green, red. If you get a green signal, in the case of the Winter Olympics, the protocol is to do additional testing to confirm that positive. Then you are disqualified from that event. That’s quite a response, and there’s really nothing for those athletes to do in that moment. The event is over; it moved on.
It’s a good example because we think about this TOF content and this presence-absence call without identification of an individual PFAS species or quantification. It’s really — it’s a blanket, guilty/not guilty, without any of the information. In the case of these winter athletes, that could be they used an illicit PFAS ski wax. That could have been the case. Or it could be that there is environmental contamination from this competitive environment with hundreds of skis and snowboards. There’s a very strict protocol of how to clean your gear before — it’s a weeks to months protocol, with dirty cleaning tools, clean cleaning tools, ultra-clean cleaning tools, and then making sure that your gear doesn’t touch any other gear. That’s really technical, and this is just one small example of how sensitive this — just detecting a single chlorine — or carbon-fluorine bond — can be and not necessarily give you all of the information just a yes/no.
LLB: With very consequential implications for the competitors.
LAH: Yes, I was reading — there’s a snowboarder from Japan who — this is likely their last Olympics, and they were disqualified from that event. What a heartbreak!
LLB: It is. It’s heartbreaking. And it certainly made international headlines: “PFAS Contamination Disqualifies Olympiads.” Maybe we should start at the beginning and take a real quick global look at PFAS regulation. I’ll start out with what’s going on in the European Union (EU). Back in 2023, the European Community proposed a broad universal PFAS restriction. It covers over 14 sectors of the economy – very, very broad — and it really sent shock waves through the regulated communities of the world. In 2025, in August, ECHA (the European Chemicals Agency) issued a reproposal.
I’m not going to go into all the regulatory options that ECHA proposed, but at the end of the day, we were waiting on two committee reports. There was a final Risk Assessment Committee (RAC) opinion that was issued — or is scheduled to be issued — this March, this month — and a draft Socio-Economic Analysis Committee (SEAC) decision also expected to be issued in March. There will be a public consultation of two months, lasting presumably through April and May. Then if — as a result of that public consultation — we could be looking at a final regulation, maybe toward the end of 2026, but more probably in 2027. Then there will be an 18-month transition period to give everyone an opportunity to come into compliance with these restrictions. So we could be looking at a final European global universal PFAS regulation in effect in 2028. As we’re approaching the end of the first quarter of 2026, that might sound like a long way off, but it isn’t, if you’re having to repurpose your products and retool basically your product inventory. That’s what’s going on in the EU.
Closer to home, Carla, what’s going on here in the United States under EPA reporting requirements relating to PFAS. How are they defined, and is it aligned with or different from what’s going on in Europe?
CNH: At the time of this recording, the reporting period is scheduled to begin in just over a month, on April 13, 2026. EPA proposed some significant changes to the reporting rule in November 2025. So I expect EPA to postpone the reporting period one more time before it issues a final rule. One of the proposed changes is that the submission period would begin 60 days after the effective date of the final rule and last three months, so that will be a shorter period that will begin relatively quickly. Other proposed changes would exempt PFAS imported as part of an article from the scope of reportable activities and would include a de minimis exemption of 0.1 percent.
We’ve heard that EPA has done some beta testing for the reporting system, and if EPA narrows the scope along the lines of the proposed rule, then the reporting system, CDX (Central Data Exchange), I think should be able to handle the number of reporters. REACH (EU Registration, Evaluation, Authorisation and Restriction of Chemicals) is a restriction proposal, not a reporting proposal, so EPA is not going to be banning PFAS in anything, unlike in the EU. Even under the current rule, it still isn’t everything, whereas REACH is looking at everything. I think they’ve had to narrow the scope a little bit, just because from the thousands of comments, it became clear that PFAS is perhaps much more prevalent than they assumed, much more essential in some cases. But there’s not a ready alternative, so REACH — it just seems they tried to — it was incredibly ambitious as a first step. Whereas, in the United States, at the federal level, we’ve got this TSCA reporting rule. It’s historical. It’s a look-back. It’s at the very other end of the spectrum than the REACH restriction proposal.
LLB: Absolutely. I think, to some extent, the EU might be saying, “Mission accomplished. Yes, we bit off probably more than we could chew back in 2023, both in terms of the scope of the regulation.” I think there is a well-recognized understanding that the pervasiveness of PFAS in consumer products, industrial products, both in making products and in products — that was not known before that proposal came out. So it did an awful lot in raising the global awareness of just how ubiquitous PFAS substances are in production, and in consumer products, and in articles writ large.
So to the extent — you’re right, Carla. I think there has been kind of a recalibration under the August 2025 proposed rule that came out, both in terms of identifying more regulatory options to address PFAS, especially those that are found to be essential and for which no alternative can be found. But it definitely succeeded in grabbing global attention and might have kick-started our own PFAS considerations and definitely has hastened the — it’s acted as a catalyst for states to emulate and go forward aggressively, even though the federal PFAS response has been a little less ambitious, shall we say. And particularly with regard to the re-proposal of the federal PFAS reporting rule that came out last November, I think to some extent it definitely addresses industry’s concerns with the reporting of PFAS going back a ten-year look-back period that may or may not have elicited the type of information that EPA could use.
The regulatory burden was almost a billion dollars when articles, byproducts, impurities, and the non-availability of a de minimis exemption was factored in. So 80 percent of those costs have been clawed back under the proposed rule, which we have no way of knowing when that proposed rule will be issued in final. But I think if I were a betting person — and I’m not — I would say sometime later this year, maybe before the end of the fiscal year, maybe not so much by June, which some people are expecting. To the extent some of our clients are taking refuge in the fact that the federal reporting requirements have been lessened and perhaps calibrated more to elicit useful information for EPA for regulatory purposes, it’s a small comfort in terms of what’s going on at the state level. And even though the regulation as proposed by EPA last November is less demanding, there are still some challenges in addressing reporting obligations under the proposed final — or the proposed PFAS reporting ruling. Lindsay, maybe you can identify what some of those challenges are that you’ve had an opportunity to address for some of our clients.
LAH: Sure. The number one issue is understanding which substances are being defined and qualified as PFAS. EPA is using this structural definition with the two fluorinated carbons. And two, it’s not as simple as, “Here’s a list of Chemical Abstracts Service Registry Numbers (CAS RN).”
LLB: Thank you for clarifying that.
LAH: But, rather, “Here’s the structural definition. Here you go, regulatory team. Good luck.” So you really need to ensure that you have confidence in your understanding of chemistry to have confidence that you have defined and identified any potential PFAS in your products, in your supply chain. That is a huge challenge. EPA has developed — one of their software tools that they have, CompTox — they have a list of PFAS, and it’s specifically a list for PFAS reportable under this reporting rule. It has over 13,000 PFAS on it. That’s a big, long list. But it also says this is not all inclusive. So even though they have a really long list, that’s not all-inclusive. That is a big challenge.
Then, the number two issue is figuring out where PFAS exists in your supply chain. When Congress originally put this into the NDAA (National Defense Authorization Act) and said, “We need to figure out where PFAS are. Give us a report on where PFAS are.” I think this whole reporting saga has come out of that. Nobody knew where PFAS were, and they started asking questions and realized, “Uh-oh, nobody knows,” so I’m happy to see that there’s this de minimis exemption, imported articles. Those are — in a way — a little bit of unanswerable questions, so I’m glad they’ve been under consideration for those exemptions. Also the “reasonably ascertainable” aspect, the container that EPA has put onto the data call, is really important. That’s telling businesses, “Do your due diligence, ask up and down your supply chain, think about the products that you use. Can they be classified as a PFAS? Work with that to the best of your abilities, and then document everything that you’re doing to make sure that you are doing what is reasonably ascertainable.”
LLB: Which continues to invite legal questions as well as scientific ones. What is reasonably ascertainable for a company that has hundreds and hundreds of EHS [environmental, health, and safety] experts might elicit one response, whereas what is reasonably ascertainable for a smaller entity that is trying to engage in effective due diligence and may not be able to exhaust as many opportunities as larger entities. We legal beagles — and Carla, I know you’ve addressed this question a lot, too — what is reasonably ascertainable and what do we have to do? — continue even after a couple of years now to elicit a lot of questions. We’ve talked also about whether EPA is expected to really beat the bushes for noncompliance with the TSCA [Section] 8(a)(7) reporting obligation when the obligation becomes final. We’ve talked before; my own view is probably not, but there’s going to be a lot of scrutiny devoted to any response, and how you respond at the federal level is going to be looked at hard with regard to how you might have reporting obligations under various state requirements.
We’ve been urging everyone to be very, very mindful of looking at the totality of your regulatory response and not silo it for, “Here’s my [Section] 8(a)(7) response. Here’s my Minnesota response; here’s my Maine response,” because the world doesn’t operate that way optically. People who are very, very interested in understanding where PFAS are — and consumer products in particular — are going to be watching carefully any response from any company and probably using all kinds of algorithms and opportunities for looking at documents that are placed in the public record to compare, contrast, and analyze how responsive your responses are, which could invite third-party liability, state regulatory liability, and EPA enforcement scrutiny, although I’m not expecting a lot of that. But Carla, Lindsay, you may have different views on that enforcement front.
CNH: The federal reporting under TSCA is very much apples to oranges with Minnesota. EPA, it’s a historical look-back, going as far back as 2011. Minnesota is looking at PFAS and products in 2026. Companies will have — for legitimate reasons — in many cases, very different answers about what PFAS is in their products. That’s a span of 15 years. There’s been a lot of attention on PFAS, broader attention about chemicals in the supply chain. Companies who wish to be good stewards or better stewards have been working to remove PFAS from their products. On the other hand, EPA has lots of guidance about the reasonably ascertainable. Minnesota has nowhere near that level of guidance. I have the impression their approach may be, or the thought is, well, just ask again and you will get the answer.
I think companies that have been working to get information under TSCA at the federal level are certainly aware it’s more complicated than that. We saw that in Canada with their PFAS reporting. It’s not just that the company manufactures all their own things. They have suppliers. The suppliers have suppliers. Suppliers are suspicious about providing information. I mean, to Lindsay’s point, it’s so much easier to have a CAS RN than a structural definition. So if you’re trying to survey your supply chain, you need someone, I would think, with more of a chemistry background to look and say, “Oh, yes, these things are PFAS.” You can’t just crank some CAS RNs through a database. While it would be great if they were more in sync, I think the state, Minnesota — I think that’s going to be the big eye-opener. It’s current time, it’s going to be everything. Even if EPA implements the original PFAS reporting rule, it’s not covering products manufactured in the United States, only PFAS, so, it’s not even a whole picture for that historical snapshot.
LLB: Lindsay, you did a great job of explaining some of the scientific challenges responders are confronting and will continue to confront in just jurisdictionally trying to assess what’s in, what’s out, how are these chemicals defined? Do I need a chemist, to Carla’s point? Often yes, here in the United States and elsewhere. There are other scientific challenges, and just for the record, because there’s been discussion and often in ways that continue to leave me unclear. What is the planetary boundary threshold exceedance argument? Why is that relevant, and who cares anyway?
LAH: That’s a great question.
LLB: With no easy answer.
LAH: Yes, so the idea of this planetary boundary is that the Earth as a whole, our Earth in space, has homeostatic mechanisms for keeping things in their normal range. An example of homeostasis is our body temperature. We have a normal, regular body temperature. If we get cold, our body shivers and that warms us up. If we get hot, we sweat and that cools us down. Our body has this built-in mechanism to help us stay in this normal, safe window that has normal fluctuations and that there is a response to get you back in toward the middle of that.
The global planetary boundary is the same idea on a global scale. There are actually nine categories, so it’s not only related to PFAS:
- Climate change — carbon dioxide concentration;
- Biosphere integrity — that’s biodiversity;
- Land system change — how we use deforestation and habitat — changes in habitat;
- Freshwater changes — that’s thinking about rivers and lakes and general soil moisture;
- Biogeochemical flows — that’s nitrogen and phosphorus and their global cycling;
- Ocean acidification — reducing the pH levels of the ocean (No, we don’t want that because then our poor corals suffer in an acidic environment!);
- Atmospheric aerosol loading – that’s particle concentration that can potentially impact a greenhouse effect of our Earth;
- Stratospheric ozone depletion; and
- Novel entities. (“What is a novel entity,” you ask — or you should ask.) That is where chemicals in the environment fall under that novel entity category, including PFAS.
For some of these nine categories, some are defined and quantified as either being below that threshold of planetary boundary or beyond it. There are a few that are not quantified, and novel entities is one. It’s currently undefined, so it’s a bit of a nebulous category. There is a group of scientists that have identified PFAS and TFA — trifluoroacetic acid specifically — as a substance that has, in their opinion, exceeded the planetary boundary. This is a very small, fluorinated substance. It’s a single fluorinated carbon on an acetic acid.
The challenge with TFA — and why some scientists are concerned — is that it has multiple sources that are not well defined. It’s a breakdown product of larger PFAS molecules, F-gases (fluorinated gases), different inputs into the environment, and it’s very persistent in the environment, so it doesn’t degrade into anything else. There is concern that it’s building up in the environment, we’re not controlling it. This is a problem.
The other side of the argument, though, is that it is biopersistent, but it is not bioaccumulative. If you or I drank a cup of TFA, our body would process it and it would go — we would excrete it. It doesn’t sit around in our system, so the hazard of that means that it’s low hazard. But in the environment, it sticks around. There’s also been identified a deep ocean source of TFA. When you think about the chemical global cycles, if there’s a deep ocean source, there’s not a lot of turnover in the ocean. That means it’s been there for a long time from something else. Is there a global TFA cycle that we just have not characterized, that we don’t understand? These are just inputs to this definition of planetary boundary and whether or not we’ve met that threshold that’s very ill-defined. But the rhetoric around TFA as a potential exceeder of that planetary boundary threshold can be a little bit extreme, a little bit hyperbolic. It’s something I’m watching because —
LLB: I’m glad you are. That is the most cogent definition I’ve heard ever. I keep seeing it in the literature. I wanted our listeners to be aware of the concept, as if we don’t have enough to worry about. The lack of clarity in that sphere is what it is, but it is tangentially related to the broader discussion that we are having here about PFAS writ large, so thank you for that.
LAH: Yes, and another piece of the puzzle of why this matters is that if TFA falls into a class that we’re going to categorize as PFAS, depending on the regulatory body, and that regulatory body is looking for total PFAS in your drinking water or in a soil sample, then TFA could be at higher levels because it’s just such a small molecule, it’s present in the environment, and so could be a larger input into that total PFAS, or some PFAS quantification. That’s something I think we need to keep our eye on and see how that plays out.
LLB: Speaking of keeping our eye on, Carla, I know you more than anyone in the firm have your eye and finger on the pulse of state PFAS restrictions. You spent the better part of last week, for example, monitoring the New Mexico public hearing on PFAS, which was entertaining, and controversial, and challenging, and certainly very time-consuming. We focus on this stuff all the time, and we have a lot of professionals here — lawyers, scientists, regulatory analysts — who can parse the regulatory initiatives as they come out, respond in public testimony and in comments and try to voice our concern or make our views known on the wisdom of these regulatory requirements and their impact on the economy. But people who might be listening to this podcast are not glued to the state registers and federal registers as we are. What should our listeners be focusing on right now and why? What train is coming down the tracks in a way that might make people a little anxious if they knew more about the timing of some of these regulatory requirements? And what suggestions do you have for monitoring them? Because to my eye, these restrictions are coming out in wildly different forms, affecting generally the same stakeholders, but in different ways. Just tracking them is really, really challenging. How can you help us, Carla?
CNH: Well, the train in the lead is Minnesota. Although they had to postpone the reporting deadline, it was supposed to take effect this past January 1. Instead, July 1, 2026. Don’t expect that to move again. They had intended to get their reporting platform up in January. It was up January 30. They intended to update it by late February. They announced Saturday, February 28, that they had updated it and made some changes. So I think Minnesota very much intends to stick with July 1 as a deadline. Their feeling is the reporting requirement was in the 2023 statute, so they’ve had plenty of time to figure out where the PFAS are, report them.
New Mexico is sort of hot on Minnesota’s heels. Under the statute, it’s a January 1, 2027, reporting deadline. At this time, the information required isn’t quite the same, based on their definitions of intentionally added PFAS. Maybe you don’t have to report in Minnesota or don’t have to report your PFAS contaminants, but in New Mexico, I think you might have to. New Mexico has also very ambitiously proposed a labeling requirement that would take effect January 1, 2027. So last week’s New Mexico board hearing — riveting! — which I never thought I would say about an administrative rulemaking hearing — “Objection!” — about PFAS. I would, say, no, you can’t take data about PFOA [perfluorooctanoic acid] and say that’s all PFAS, including fluoropolymers.
To try and keep up with this, we report many developments on our blog. We’ll have a memo coming out on Minnesota’s CUU (currently unavoidable use) concepts. I don’t think it’s quite a proposed rule yet. Hopefully, it will be in line with Maine, which already has a CUU rule, because, again, otherwise, these small differences can end up having big impacts. Aside from us, I really think it’s key for industry if you’re a member or within a sector that has an association, join, monitor. The associations are much better positioned to be aware of legislation when it’s still at the proposal stage and it’s possible to advocate for some amendments or try to educate the legislators about the impact of the legislation if it were to be enacted. Once something ends up in a statute, it’s a much more difficult process.
The other thing we’ve mentioned before, Safer States. It’s a free website, I think it’s saferstates.org, but it would allow you to look at proposed legislation and filter it by topic, including by PFAS. That’s another way to keep an eye on what’s going on now, what might be coming.
LLB: For the benefit of our listeners that aren’t as tuned to this, Carla, CUU is what?
CNH: A currently unavoidable use, and there are actually two CUU determinations in Maine for PFAS used, I think, in a vent. It’s the interior component of a container for a bleach product. It’s not your nonstick skillet or your rain slicker. It’s somewhere the consumer isn’t really going to be exposed. The risk in having a container for bleach that cannot vent is real, but manufacturers need to know that their PFAS is there. They need to know that they need a CUU determination, how to get it. It’s complicated. Call us.
LLB: We’ve got an awful lot of information on CUUs on our website. Lindsay, as a scientist, what can you offer our listeners in terms of identifying risk and avoiding liability? You come at it from a slightly different perspective.
LAH: Yes, we’ve already talked about this, but it’s worth repeating. Know what your supply chain includes, know the definition of PFAS, work with a chemist, either on your own team or elsewhere, like with us. Also, document all of your due diligence that you’re doing to understand PFAS in your supply chain. If you do identify that you have PFAS in your supply chain, understand if the performance of that substance is required for your end product and understand potential hazards of the specific PFAS that you’re using — potential exposures in the workplace or environmental releases — and document those.
If you don’t have that information, that might be a good area to dig a little deeper and understand more. Now we do understand hazard of some PFAS very well. Many — most others — we have little to no idea.
LLB: Not so much, right.
LAH: Yes. If you have a critical use, a CUU of a PFAS in your business, then consider digging deeper and defining that hazard, potentially doing some testing. Maybe that’s with a group of other businesses in the same situation, potentially through a consortium that could help consolidate costs to share those costs related to any sort of testing. Not that it’s required, but that you, as a sustainable, proactive business, have that knowledge to understand the substances in your supply chain, especially because there’s so much public perception wrapped around PFAS and that you need to be able to defend use of PFAS based on understanding that hazard and potential exposure.
LLB: That defense might be in a court of law, it might be in the court of public opinion, it might be to your shareholders, stockholders, your workers. Again, preparing that defense is important. You might have a CUU, but your ability to continue to use that PFAS is not just a function of meeting a regulatory burden. There are all of these different other decision-makers that have to be persuaded as well.
No conversation on PFAS would be complete without at least a brief mention of NHANES (National Health and Nutrition Examination Survey). Lindsay, what are these data? What do they mean? Can we rely upon them to give us any indication of whether PFAS exposure is going up or down? What can you tell us?
LAH: Yes, NHANES is a program out of CDC (Centers for Disease Control and Prevention); it’s the National Health and Nutrition Examination Survey. They take blood and urine samples from a large swath of the population and look at all sorts of health metrics. Within that — they’ve been doing this for decades — some of the things that they look for in serum have included PFAS. From the years of 1999 to 2018, NHANES reported serum levels of a subset of PFAS, including some of our most notorious members — PFOS (perfluorooctanesulfonic acid) and PFOA — so we have this retrospective historical look at close to 20 years of levels of PFAS in the U.S. population in serum. Just over that time of surveillance from 1999 to 2018, PFOS levels declined by over 85 percent in serum, and PFOA levels declined by over 70 percent.
These were the two PFAS that they detected at the highest level in serum. The other PFAS they looked at were at much lower levels and either maintained very low levels or were undetectable. We’re talking about PFOS ranges in the early years, 1999, around 39 micrograms per liter (µg/L) of serum, and down to, toward the end of 2018, 5 µg/L, so 39 down to 5.
LLB: Which is substantial!
LAH: That’s a big change. That coincides with some of the large manufacturers moving away from production of that PFAS. That’s a really good live shot of — we removed that from the supply chain; now we’re not seeing it in serum levels anymore. But 2018 is really the last year that NHANES looked at PFAS in serum. Shortly thereafter was COVID, with impacts, and that means that the NHANES labs had to shut down or go into minimal work.
Then priorities changed, right? We had this huge focus on COVID and some of our other public health issues, so NHANES has dropped looking at PFAS in serum. We now don’t have an active nationwide surveillance of PFAS in serum. For me, if we’re going to be enforcing some sort of regulation, it would be nice to see that it’s effective by looking at a continued reduction of PFAS in serum, but that doesn’t exist right now so we have an idea of how it was. It would be nice if NHANES could pick back up surveilling PFAS in serum so that we can understand if future regulations are having the desired impact on our serum levels of PFAS in the U.S. population.
LLB: Absolutely. Intuitively, one could surmise that given diminished use, diminished exposure, therefore any new NHANES data down the road would bring good news. But that is an assumption, not a fact.
LAH: Yes. It’s an assumption, but also, I think there’s a lot of fear — public perception fear — of “I’m exposed to this forever chemical. Are my children safe?” That’s also helped allay those fears and say, yes, all of this work is making an impact to give us a healthier world.
LLB: Agree.
LLB: Carla, I’m going to leave you with the last word in this conversation as we began. In your view, for those listening to this podcast, what short list of suggestions do you have for our listeners just managing the wonderful world of PFAS, particularly at the state level, obligations and regulations?
CNH: Know your products, That means your product components and your suppliers. Ask questions. Ignoring it isn’t going to make it go away. If you’re currently selling products in Minnesota and don’t report, the enforcement response, I think, would be that Minnesota will prevent the sale of your products if you haven’t reported and there are PFAS. If you have PFAS in your products, I guess the other thing is, why is it there and not embrace it, but accept it? Either it’s there for a good reason and you can make that argument, or it was there for what seemed like a good reason at the time and is no longer a good reason, and you can remove it, which would honestly take care of a lot of the issues at the state level. Again, call us.
LLB: Excellent recommendations, Carla. You began with don’t assume, don’t make assumptions, know your products, and be vigilant. Those are our bottom line thoughts. Anything to add, Lindsay?
LAH: I think that wraps us up. It really is trying to shine a light into the dark spaces, where we just haven’t had a lot of understanding and knowledge about where PFAS are. That’s our challenge, and I think we’re ready to face it. We’re already facing that challenge and supporting our clients to do that. We can do that in a proactive way to help minimize any sort of liability and continue moving forward.
LLB: Or just anxiety. The anxiety occasioned by not knowing what comes next is a lot. We have a PFAS resource center. We have tons of information on our website. We have lots of other blogs where we discuss PFAS. We truly are here to help.
I want to thank you, Lindsay, Carla, for a wonderful discussion about PFAS, and again, if anybody has questions, or thoughts, or concerns, give us a shout. We’re here to help. Thanks so much, guys. It was wonderful chatting with you today.
LAH: Thank you.
LLB: Thanks again to Carla and Lindsay for sharing their expertise and wisdom with me about anticipating, understanding, and staying ahead of the PFAS restriction curve.
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