On September 20, 2023, the Consumer Product Safety Commission (CPSC) published a Federal Register Notice to request information on PFAS from “all stakeholders such as consumers, manufacturers and importers, government agencies, non-governmental organizations, and researchers.” Written responses are due by November 20, 2023.

In all, the notice contains 11 information requests, some with subparts, which fall into three broad categories:

• Requests pertaining to the use or potential use of PFAS in consumer products, including solicitation on the question of which chemical substances should be considered to be regulated as PFAS.
• Potential human exposures to PFAS associated with consumer products, as well as data regarding population groups that may be especially at risk of high exposure.
• Toxicological data and adverse human health effects.

The questions themselves are set forth at the bottom of this blog post.

The notice explicitly provides that the request for information “does not constitute or propose regulatory action, but rather is intended to inform the Commission and the public.” Nevertheless, it seems reasonable to expect that the responses could serve as the basis for future regulations or, alternatively, could inform future enforcement initiatives.

As such, the request for information provides a potentially useful opportunity for interested stakeholders to influence future CPSC activities focused on PFAS. The timing is significant, given that the past few years have witnessed an uptick in consumer safety-related PFAS litigation and industry-driven efforts to curb the scope of PFAS-regulation (such as by, among other things, proposing PFAS-related exemptions to Superfund liability).

In this connection, various stakeholders have expressed concerns—largely in response to measures implemented or proposed by the U.S. Environmental Protection Agency and state authorities—regarding the pitfalls of regulating the entire class of some 15,000 PFAS in the same manner. For example, certain chemical companies and members of the scientific community have long expressed the view that fluoropolymers have a different and more benign safety profile than certain other PFAS, such as long-chain perfluorinated chemicals like PFOA or PFOS, and therefore should not be subjected to the same degree of regulation. The request for information provides a convenient forum for interested businesses to convey this viewpoint and, equally important, any supporting information to the CPSC. Similarly, companies interested in showing that the PFAS in their products are either benign or unlikely to give rise to harmful exposure scenarios may wish to take advantage of this opportunity to push for a more reasonable regulatory climate as it pertains to these chemicals.

Pillsbury attorneys are experienced in practicing before the CPSC and, more broadly, assisting clients in responding to or commenting on governmental requests such as this one.

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The RFI groups the CPSC’s questions in three categories:

Use or Potential Use of PFAS in Consumer Products

1. Please provide information about the definition of PFAS, including which chemical substances should be considered a perfluoroalkyl or polyfluoroalkyl substance, which chemical substances should be excluded from consideration as a PFAS, and which PFAS are considered in commerce.
2. Please identify specific PFAS potentially used or present in consumer products that are not already included in the contract report and related supporting files. For each PFAS chemical identified, specify relevant consumer product(s) and/or use categories.
3. Please provide information about which specific PFAS the CPSC should prioritize in assessments of potential uses or presence of PFAS in consumer products.
4. Please provide information about which specific consumer products CPSC should prioritize in assessments of potential uses or presence of PFAS.
5. Please provide information about consumer products or materials used in consumer products that may be sources of PFAS.

5a. For intentional uses of PFAS, please provide information on: Chemical identity and physical form (solid, liquid, gas, semi-solid); Functional purpose of the PFAS; and measurements or estimates of levels/concentration of PFAS used in consumer products.

5b. Where PFAS may be present in consumer products other than for intentional, functional uses (such as manufacturing or environmental contaminants), please provide information on sources of contaminants; chemical identity and physical form; degradation of substances or materials in consumer products to PFAS; and measurements or estimates of levels/concentration of PFAS in consumer products other than from intentional uses.

Potential Human Exposures to PFAS Associated With Consumer Products Use, Including Information About Potentially Highly Exposed Population Groups

6. Please provide information related to the emission of PFAS from consumer products into the indoor environment. For example, studies or data that estimate emission rates or mass transfer parameters of PFAS chemicals from consumer products or materials.
7. Please provide information related to the migration of PFAS from consumer products into saliva, gastrointestinal fluid, or skin. For example, studies or data that estimate migration rates into biological fluids or surfaces based on sustained contact time.
8. Please provide information about the potential for exposure and risk from presence of PFAS in consumer products (including contact exposures from direct use of consumer products and mediated exposures such as through emission of PFAS from products to surfaces, indoor dust, or indoor air). Please provide:

8a. Data related to specific exposure pathways from consumer product sources and associated data or estimates of occurrence of PFAS in environmental media;

8b. Data on measurements or estimates of PFAS intake, uptake, clearance, half-life, or occurrence in people (biomonitoring); and

8c. Data on the relative source contribution of consumer product(s) or ingestion of indoor dust, or inhalation of indoor air compared with other relevant sources such as ingestion of drinking water or ingestion of food associated with estimates of aggregate exposures.

9. Please provide information about population groups that may use certain consumer products for a greater than average magnitude, frequency, or duration based on habits, practices, and characteristics specific to that population group.

Potential Adverse Human Health Effects Informed by Toxicological Data

10. Please provide reports and underlying data for data sources that could inform whether individual PFAS or subclasses or categories of PFAS have potential for adverse human health effects. This includes human or animal studies that report the relationship between known exposures and observed effects. This also includes new approach methodology studies such as in-vitro assays or in-silico predictions that report the relationship between known exposures and observed biological activities related to health effects.
11. Please provide information on additional sources of data and other information that CPSC should consider that are not already included or mentioned in the contract report and associated data files.

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