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Earlier this week, the NJ Senate and General Assembly passed the "Protecting Against Forever Chemicals Act" (the "PAFC Act"), following other state legislatures seeking to limit or eliminate the proliferation of forever chemicals in various products sold in the State of New Jersey. A copy of the FAFC Act can be found here https://www.njleg.state.nj.us/bill-search/2024/S1042/bill-text?f=S1500&n=1042_I1 The PAFC Act has been delivered to Governor Murphy who is expected to sign it in the next few days.
Commonly referred to as PFAS or PFOS (standing for perfluoroalkyl and polyfluoroalkyl substances) are man-made compounds that have multiple flouring atoms bonded to a chain of carbon atoms. The substances are often referred to as "forever chemicals" as the bonds between the carbon and fluorine atoms are extremely strong and very difficult to break.
Due to impacts of PFAS and PFOS on waste streams, water, soil and the air, various studies have shown, and the New Jersey legislative history indicates that these forever chemicals bio accumulate in human blood and do not leave our bodies resulting in PFAS having been detected in 98% of humans who have been tested for this substance.
The PAFC Act focuses on the following types of products:
– carpet– cookware
– cosmetics
– fabric treatments; and
– food packaging
and bans for sale, and the making of an offer to sell and distribute any these products that contain PFAS/PFOS, 2 years from the effective date of the statute – meaning by 2028. The Act also restricts manufacturers and distributors from adding PFAS to consumer products other than in di minimis quantities. Yes, you read that correctly – the PAFC Act BANS the above products from being sold in New Jersey if they contain PFAS/PFOS!
Products are defined to include not only the item manufactured, assembled, packaged or otherwise prepared for sale to consumers, but also includes personal, residential as well as commercial and industrial uses and restricts the addition of PFAS into these products.
Consumer Products do NOT include drugs, dietary supplements, medical devices, cosmetics covered by the Federal Food, Drug and Cosmetics Act, medical equipment, products regulated under the Federal Insecticide, Fungicide and Rodenticide Act, and certain products made with fluoropolymers.
Where the Division of Consumer Affairs (DCA) finds a person has violated the PAFC Act, the PAFC Act provides DCA with broad enforcement powers including bringing a civil action, levying a civil penalty, bringing an action for a penalty, and directing the manufacturer to cease offering the product for sale. The PAFC Act allows for civil penalties of between $1,000 per day up to $25,000 per day depending on the violation.
The Department of Environmental Protection (DEP) is also directed to create and implement a source reduction program within one (1) year from the effective date of the PAFC Act focusing on air, water, soil and bio-solids and to begin research and information sharing on the above PFAS levels within NJ's air, water, soil, and bio-solids and to report and publish such findings yearly beginning in year 2 from the effective date of the PAFC Act. These mandates have been funded from the General Fund to the tune of $4.5M.
Forever Thoughts: As the Federal government continues its significant regulatory scale back, in particular at the EPA on many environmental issues, including PFAS, various states like New Jersey have taken up the mantle and continue to pass ever stronger regulations focusing on PFAS in the air, water, soil and in consumer products. While some might say this is a "blue state" or a "red state" thing, in the PFAS arena both red and blue states remain very active and continue to focus efforts to limit PFAS' and PFOS' impact on their citizens by creating restrictions on adding PFAS to products like New Jersey's PAFC Act, to seeking to force various manufacturers of PFAS to clean up and test for various levels of PFAS and PFOS impacts. Some commentators have even labeled forever chemicals and their trapping and eradication and removal from human blood as the "asbestos like" issue of the 2020s and beyond.
Duane Morris has an active Energy and Environmental Team to help organizations and individuals plan, respond to, and execute on your risk mitigation planning and initiatives. For more information, please contact Brad A. Molotsky, Alexander Judd, Sheila Rafferty-Wiggins, Jeff Hamera, Robert Montejo, or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
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