On September 20, 2023, the Consumer Product Safety Commission (CPSC) issued a Federal Register Notice and Request for Information1 asking for public comment about the use and presence of per- and polyfluoroalkyl substances (PFAS) in “consumer products” under its jurisdiction (the “Request for Information”). By issuing this Request for Information, CPSC has signaled its interest in joining the Environmental Protection Agency, U.S. Food and Drug Administration, and U.S. Department of Agriculture, along with several state and municipal jurisdictions, in studying and potentially regulating PFAS.
Request for Information
The Request for Information asks stakeholders, such as manufacturers, importers, and consumers, to respond to eleven questions on the use, presence, potential exposure, and adverse toxicological effects of PFAS in consumer products under the CPSC’s purview, including products used in or around the home or school.2 The CPSC organizes these questions into three broad categories:
- Use or potential use of PFAS in consumer products;
- Potential human exposures to PFAS associated with consumer products use, including information about potentially highly exposed population groups; and
- Potential adverse human health effects informed by toxicological data.3
The CPSC intends for the information it receives to build on a recent report4 on PFAS in consumer products commissioned by the agency and released in conjunction with the Federal Register Notice. Of note, in characterizing PFAS and identifying their uses and applications in consumer products, the report identifies nine (9) categories of CPSC regulated consumer products that use PFAS:
- Childcare products;
- Clothing, apparel, jewelry, and accessories;
- Containers and packaging;
- Furniture, furnishings, and décor;
- Household products;
- Outdoors, outdoor recreation, sports, and fitness;
- Small and large appliances; and
- Toys, hobbies and crafts.5
The report further identifies 863 different types of PFAS used or detected in these categories of consumer products, including PFAS that may unintentionally be introduced into the products during the manufacturing process.
Though the issuance of this Request for Information imposes no new regulations or changes to existing regulations on consumer products, it does indicate potential avenues CPSC may consider for regulating PFAS in consumer products, and what specific consumer products it may consider further regulating. One question is how any CPSC regulation in this area will impact the various and differing and changing regulations implemented by state and local jurisdictions, most notably California. As it stands, the lack of uniformity among the various jurisdictions makes compliance challenging.
Stakeholders, including manufacturers and industry trade groups, should consider submitting responses to the CPSC’s questions, with or without the assistance of counsel experienced in these processes, to help guide the CPSC as it considers regulating PFAS in consumer products. Written comments must be submitted to the docket by November 20, 2023.
1 Per- and Polyfluoroalkyl Substances (PFAS) in Consumer Products, 88 Fed. Reg. 64890 (Sept. 20, 2023).
2 The CPSC has jurisdiction to regulate consumer products in accordance with the Consumer Product Safety Act, Federal Hazardous Substances Act, and other statutes.
3 88 Fed. Reg. 64890, 64892.
4 RTI International, “Characterizing PFAS Chemistries, Sources, Uses, and Regulatory Trends in U.S. and International Markets,” White Paper (Jun. 20, 2023).
5 Id. at ES-2, 3-2, 3-3 (Jun. 20, 2023); 88 Fed. Reg. 64890, 64891.