On May 24, 2023, Minnesota became the latest state to impose significant restrictions on perfluoroalkyl and polyfluoroalkyl substances (PFAS) when Governor Tim Walz signed HF 2310. In this blog post, we examine some of the critical questions surrounding the new law.
What does the new law do?
Headlining the new law is a ban on the sale, offer for sale, or distribution for sale of certain products that contain intentionally added PFAS. This ban will be rolled out in two stages. Initially, beginning on January 1, 2025, a person may not sell, offer for sale, or distribute for sale any of the following products if the product contains intentionally added PFAS:
- carpets or rugs;
- cleaning products;
- dental floss;
- fabric treatments;
- juvenile products;
- menstruation products;
- textile furnishings;
- ski wax; and
- upholstered furniture.
The commissioner of the Minnesota Pollution Control Agency (MPCA) may by rule identify additional products by category or use.
The second phase of the ban beginning on January 1, 2032 is a total prohibition on the sale, offer for sale, or distribution for sale of any product that contains intentionally added PFAS. A product or category of product can be excepted from this ban if the commissioner determines that the use of PFAS is a currently unavoidable use, although the commissioner may not make such a determination for a product that is included in the initial ban discussed above.
What are the ongoing requirements?
The new law requires that, on or before January 1, 2026, a manufacturer of any product offered for sale, or distributed in the state, that contains intentionally added PFAS submit certain information to the commissioner of the MPCA, including a description of the product and the purpose for which PFAS are used in that product or any of its components. The manufacturer must also identify the amount of each PFAS in the product. This is not a one-time requirement; rather, a manufacturer must submit this information whenever a new product that contains intentionally added PFAS is sold, offered for sale, or distributed in the state, and update and revise the information whenever there is significant change in the information or when requested to do so by the commissioner.
Certain waivers do exist. For example, the commissioner may waive part or all of the submission requirements if the commissioner determines that substantially equivalent information is already publicly available. The commissioner may grant such a waiver to a specific manufacturer or a group of manufacturers for multiple products or a product category.
How will MPCA enforce the new requirements?
The regulated community will be responsible for complying with the new law, including the information submission requirements and prohibitions. However, at any time, MPCA may order a manufacturer to test a product if MPCA has reason to believe the product contains intentionally added PFAS and the product is being offered for sale in Minnesota. If the product contains intentionally added PFAS, the manufacturer must comply with the information submission requirements discussed above.
MPCA is authorized to enforce the new law’s restrictions under Minn. Stat. §§ 115.071 and 116.072. Minn. Stat. § 115.071 authorizes MPCA to seek criminal and civil penalties for violations of Chapter 116, the chapter in which the new law is codified. A person convicted of a violation under Minn. Stat. § 115.071 is guilty of a misdemeanor. Civil penalties under Minn. Stat. § 115.071 can reach $10,000 per day of violation. Minn. Stat. § 116.072 authorizes the commissioner to issue orders assessing penalties up to $20,000 for violations identified during an inspection or other compliance review.
Does the new law apply to every product?
Some products are exempted from the new law. First, if federal law governs the presence of PFAS in a product, state authority over that product is preempted. Second, if a product is already regulated under Minn. Stat. § 325F.072 (firefighting foam) or Minn. Stat. § 325F.075 (food packaging), then the new law does not apply. Finally, the new law does not regulate the sale or resale of a used product.
What’s next for PFAS in Minnesota?
This new law serves as just one aspect of Minnesota’s evolving regulatory framework for PFAS. In February 2021, MPCA published its Minnesota PFAS Blueprint, which identified 10 priority areas for additional research, new health guidance, drinking water and food protection, and more tools for cleanup and prevention. MPCA followed in March 2022 with its PFAS Monitoring Plan, which identified a preliminary list of facilities from which MPCA planned to collect data regarding the release and/or presence of PFAS. Over the course of the last year, facilities have started to receive requests from MPCA to sample snow, air emissions, and wastewater for PFAS. MPCA plans to use the data collected from these sampling efforts to develop enforceable standards. As these standards are developed and plans implemented, the regulated community should be prepared to examine their supply chains and products for the purposes of complying with the information submission requirements and prohibitions of the new law, respond to requests for PFAS sampling, and provide comments on proposed rules.
If you have any questions about the status or implications of PFAS regulations in Minnesota, contact Thomas Braun at email@example.com or 612-373-8835.