[co-author: Amanda Thompson, Summer Associate]
Vermont now has a law restricting per- and polyfluoroalkyl substances (PFAS) in a variety of products. After unanimous approval by both houses of the Vermont legislature, Governor Phil Scott signed into law S.20, an act that places restrictions on PFAS found in firefighting foam and equipment; food packaging; rugs, carpets, and aftermarket stain and water-resistant treatments; and ski wax. The act also lists three PFAS as chemicals of high concern to children. The act applies on a staggered basis with the restrictions on firefighting foam and chemicals of high concern to children taking effect on July 1, 2022, and food packaging, rugs and carpets, and ski wax taking effect on July 1, 2023.
PFAS are broadly defined in the act as fluorinated organic chemicals containing at least one fully fluorinated carbon atom. PFAS are used in manufacturing coatings and products that resist heat, oil, stains, grease, and water.
PFAS in Firefighting Agents and Equipment (takes effect July 1, 2022, except as noted below)
The act addresses class B firefighting foam, which is a chemical foam designed for flammable liquid fires. The act prohibits the discharge of class B firefighting foam containing intentionally added PFAS for training and testing purposes only. The act also provides that no one may manufacture, sell, or distribute class B firefighting foam that contains intentionally added PFAS in Vermont after October 1, 2023. If class B firefighting foam contains intentionally added PFAS and is sold in Vermont after that date, manufacturers must recall the product and reimburse the purchaser or retailer and also issue either a press release or notice on their websites describing the product recall and reimbursement.
A person operating a terminal after January 1, 2024, who intends to purchase class B firefighting foam to fight emergency class B fires, may apply to the Department of Environmental Conservation (DEC) for a one-year temporary exemption from the act’s manufacturing restrictions.
If firefighting personal protective equipment (clothing intended to be worn by firefighting personnel during fire and rescue activities) contains PFAS, the act requires manufacturers to provide written notice to a purchaser at the time of sale, including the reason why the PFAS were added to the equipment. The written notice must be kept by both the manufacturer and purchaser for three years from the date of the transaction.
Food Packaging Restrictions (takes effect July 1, 2023)
Under the act, no one may manufacture, sell, or distribute food packages in Vermont that contain intentionally added PFAS of any amount. The act defines a food package as a package or packaging component that is intended for direct food contact. Packages include unsealed receptacles, such as carrying cases, crates, cups, pails, rigid foil, and other trays, wrappers, and wrapping films, bags, and tubs. The act also restricts food packaging containing intentionally added ortho-phthalates, and it gives the DEC discretion to adopt rules in the future that restrict intentionally added bisphenols found in food packaging.
PFAS in Rugs, Carpets, and Aftermarket Stain and Water Resistant Treatments (takes effect July 1, 2023)
The act provides that no one may manufacture, sell, or distribute in Vermont any residential rugs or carpets or aftermarket stain and water resistant treatments for rugs or carpets that contain intentionally added PFAS of any amount. Because of Vermont’s broad definition of PFAS under the act, this action may have a more extensive reach than the July 27, 2020 Environmental Protection Agency (EPA) rules under the Toxic Substances Control Act (TSCA) that restricted over 500 PFAS found in carpets and surface coating treatments.
PFAS in Ski Wax (takes effect July 1, 2023)
The act provides that no one may manufacture, sell, or distribute ski wax or related tuning products with intentionally added PFAS of any amount. This restriction in Vermont comes after the U.S. Ski & Snowboard Association announced its ban on the use of PFAS in ski wax in competitions for the upcoming 2021-22 ski season.
Chemicals of High Concern to Children (takes effect July 1, 2022)
Vermont maintains a list of chemicals of high concern to children. The Commissioner of Health has the authority to add to the list and adopt rules that prohibit the sale or distribution in Vermont of a children’s product containing a chemical of high concern to children. Manufacturers who use chemicals listed as high concern to children in their products must report information about these chemicals to the Health Department. In addition to the chemicals listed under 18 V.S.A. § 1776, the PFAS act identifies three types of PFAS as chemicals of high concern to children:
- Perfluorohexane sulfonic acid – CAS No. 355-46-4
- Perfluoroheptanoic acid – CAS No. 375-85-9
- Perfluorononanoic acid – CAS No. 375-95-1
Manufacturers that use any of these three PFAS in children’s products sold in Vermont must now report information about these chemicals to the Health Department in an annual notice.