Sales constraints simply refer to the inability to ship products into jurisdictions that ban the use of these chemicals in packaging. These bans subject companies to potential regulatory enforcement actions, including fines and other penalties. Moreover, we predict a significant uptick in class action claims brought against companies using PFAS packaging. Already, we are seeing an increase in product boycotts against such companies. The fact that so many large companies have already disavowed the use of these products will likely serve to strengthen the argument that companies are on notice that these products pose a potential danger to consumers. Thus, we strongly recommend that companies still utilizing PFAS packaging materials consider switching to non-PFAS products.
The EPA Roadmap
The EPA’s PFAS Roadmap is a lengthy document that details the agency’s thinking, explains the need for change, and sets timelines by which EPA intends to take specific actions. In short, EPA commits to a series of new policies aimed at safeguarding public health, protecting the environment, and holding polluters accountable for violations arising from the use of PFAS.
EPA proposes a comprehensive, multi-tiered approach, shaped by the unique challenges of addressing PFAS contamination. That is, because PFAS pollution is not a legacy issue, meaning the chemicals continue to be used in U.S. commerce, EPA must focus on both cleaning up downstream PFAS pollution and preventing future PFAS pollution. In turn, the EPA approach will focus on three central directives: research, restrict, and remediate.
Research. The research directive refers to EPA making significant investments in research, development, and innovation to increase understanding of PFAS exposures and toxicities, human health and ecological effects, and effective interventions that incorporate the best available science. That is, because we are still understanding the severity and significance of the risks posed by PFAS, the agency intends to pursue a science-based approach to better understand the risks and solutions involving PFAS.
Restrict. The restrict directive refers to taking actions intended to restrict future use and pollution. Here, the agency plans to pursue a comprehensive approach to proactively prevent PFAS from entering air, land, and water at levels capable of causing an adverse impact on human health and the environment.
Remediate. The remediate directive predictably refers to the agency’s goal of cleaning up PFAS pollution. To accomplish this, the agency intends to broaden and accelerate the cleanup of PFAS contamination to protect human health and ecological systems.
EPA’s goals and timelines address a broad area of regulatory decision making, reporting requirements, and environmental thresholds that will span a period of years, with most planned actions being implemented by the end of 2024. For example, EPA is looking at PFAS chemicals that it has previously reviewed through the Toxic Substances Control Act (TSCA) New Chemicals Program, including those that it reviewed prior to the 2016 TSCA amendments. This could lead to currently approved PFAS being disapproved. EPA also recently launched a stewardship program to encourage companies to voluntarily withdraw previously granted PFAS low volume exemptions (LVEs), and is currently revisiting past PFAS regulatory decisions and addressing those that are insufficiently protective.
Given this plan, it is unlikely that a formal federal ban will be implemented in the near term. However, a formal withdrawal of an LVE or other similar action could have substantially the same effect. Thus, and for all the reasons described above, now is the best time for companies to begin planning and taking action to address PFAS packaging.
Alternative Options
The good news is that emerging technologies are allowing for a mostly seamless transition between PFAS packaging and safer, more environmentally friendly packaging with the same qualities that PFAS packaging is known for. Already, numerous companies are offering sustainable, PFAS-free packaging to accommodate the expected boom.
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