• Government regulatory action and private litigation relating to PFAS continues to expand
  • EPA issued a PFAS-related test order under Section 4 of the Toxic Substances Control Act on June 6, 2022
  • This is the first of several anticipated orders for PFAS manufacturers to conduct testing on the human/ecological effects of certain PFAS
  • EPA's action coincides with other novel PFAS regulation, like an expected ban on PFAS in clothing in New York

The Environmental Protection Agency (EPA) issued the first in an anticipated series of test orders under Section 4 of the Toxic Substances Control Act (TSCA) on June 6, 2022.1 Under the order, the companies identified by EPA are required to conduct testing or submit certain existing data on per- and polyfluoroalkyl substances (PFAS).2

PFAS are widely used, long-lasting chemicals. Certain components in these substances can break down very slowly over time. There are thousands of PFAS-related chemicals. They are found in many different consumer, commercial, and industrial products. Because of their potential persistence, certain PFAS are detectible in the blood of people and animals and can be present at low levels in a variety of food products and in the environment.3 In recent years, certain researchers have begun alleging links between PFAS and adverse health outcomes.4

EPA's June 6 order is a part of its National PFAS Testing Strategy. This is intended to "evaluate a large number of PFAS for potential human and ecological effects" as "most PFAS lack data for robustly characterizing their potential toxicity."5 To achieve that goal, EPA is exercising its "authority to require PFAS manufacturers to conduct and fund . . . [] studies" on the effects of PFAS. The order requires four entities—the Chemours Company, DuPont De Nemours Inc., National Foam Inc., and Johnson Controls Inc.—to report data on 6:2 fluorotelomer sulfonamide betaine, a "surfactant used to make commercial fire-fighting foams and . . . certain floor finishes."6 The required testing will be tiered—that is, further testing may be required depending on the results submitted to EPA in the first tier. The first-tier testing will be due to EPA 400 days after the effective date of the order. In order to share in costs, the companies receiving the order may participate in a consortium for testing.

EPA has plans to continue issuing PFAS test orders. The June 6 order is the just the first in a multipart plan that proposes issuing of test orders at each phase.7 As a result, other companies that manufacture PFAS may expect to receive similar EPA directives in the coming months.

Companies with PFAS-containing products are seeing an increasing amount of government regulatory action or private litigation. A recent example of downstream claims is litigation against restaurant chains for the alleged presence of PFAS in food packaging. New York's legislature is also expected to ban PFAS in clothing by 2024. The supporting bill recently passed in the legislature—one of the first in the nation to do so.

Given the growing attention on the use of PFAS chemicals and evolving regulatory standards, companies may wish to consider an audit of their production and products. A number of companies have phased out or are phasing out use of some of the most prominent PFAS chemicals. There are, however, many such chemicals in use. And government regulatory action announcing more conservative human health standards or requiring new data disclosures can precipitate private-party litigation.

For further reading, please see EPA's Authority to Regulate Chemicals in Finished Products: PFAS, PIP (3:1), and Beyond.


1. Order Under Section 4(a)(2) of the Toxic Substances Control Act, EPA (June 6, 2022),

2. EPA Issues First Test Order Under National Testing Strategy for PFAS in Commercial Fire Fighting Foam and Other Uses, EPA (June 6, 2022),

3. PFAS Explained, EPA,

4. Id.; Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), National Institute of Environmental Health Sciences,

5. National PFAS Testing Strategy, EPA (Oct. 2021), at 3,

6. EPA Issues First Test Order, supra note 2.

7. National PFAS Testing Strategy, supra note 5 at 15.

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