Washington, D.C. (October 5, 2021) – Businesses across the country will soon face challenging new requirements to disclose the presence in their products of, and worker and environmental exposure from, an enormous set of chemicals that have been used for years in products, including cooking pans, furniture and carpets, food wrappers, apparel, paint, automobiles, machinery, and a vast array of other products. Making the challenge greater, this reporting obligation extends back ten years, even though few companies have records that disclose whether an ingredient or component they used contained one of thousands of per- or polyfluorinated alkyl substances (PFAS).

The U.S. Environmental Protection Agency (EPA) is set to finalize new regulations soon that will force the manufacturing community to provide these detailed reports within a year, and if hard numbers cannot be ascertained, businesses must produce best estimates based on diligent search efforts. And with multimillion-dollar PFAS litigation already resulting in sizeable settlements, there can be no doubt these new public reports will generate intense interest from the plaintiffs' bar.

The comment period for EPA's proposed rule closed September 29, 2021, with numerous industry stakeholders laying out concerns over the enormity of the task ahead. The scale of the reporting obligation is so extensive because the new rules will require reporting of any manufacture over the last 10 years of at least 1,361 chemical compounds, and EPA has eliminated traditional exemptions for small quantity production and byproducts. Further, the term "manufacture" includes the import of any ingredient, component, or finished product that contains a PFAS chemical, and globalization has created complex supply chains that make tracing the origin of chemicals like PFAS compounds extraordinarily challenging, particularly over a span of years.

Businesses that are not already preparing to meet these major new compliance obligations should spend time now to understand the new requirements, as they are expected to come into force with relatively little lead time. 

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