EPA Pumps the PFAS Brakes by Postponing the Reporting Deadline for Past PFAS Use in Consumer Products by Eight Months

Background

In October 2023, EPA promulgated its final rule regarding reporting and recordkeeping requirements for PFAS under Section 8(a)(7) of the Toxic Substances Control Act of 1976 (TSCA). The final rule requires manufacturers or importers of all PFAS-containing “articles” (which includes both finished consumer products and their individual components) to provide a one-time report to EPA on the presence of PFAS in their products for each year from 2011 to 2022, even if the products have been discontinued.

For US-based companies that import their final products, or assemble them domestically using either imported components or components manufactured domestically by other entities, the final rule requires them to submit so-called “streamlined” reporting on the chemical identities of PFAS used, their maximum concentrations in each article, their function in those articles, and the production volume of each PFAS-containing article by year. A separate report is required for each PFAS used. (Articles manufactured domestically require more extensive reporting, including information on disposal, exposures, and hazards associated with the PFAS they contain.)

As we reported in a previous alert, the submission period was due to start November 12, and the reporting deadline was May 8, 2025 (or November 10, 2025, for small importers of articles). Consumer product companies have been scrambling to gather this voluminous historical information from their own files and that of their finished product or component suppliers in order to meet these fast-approaching deadlines. This task has been especially burdensome for businesses based on the extensive 12-year reporting period, with some information not ascertainable despite due diligence.

Reporting Deadline Postponed

Consumer goods companies have not been the only ones rushing to meet the deadlines. It appears that EPA has come to the realization that it needs significantly more time to develop and test the software required for collecting the information from reporting entities. The clearly unworkable alternative was for the Agency to continue developing the software after reporting had started, with the result that early submitters might have to start over and resubmit, and unsubmitted but partially completed forms might have to be restarted. As a result, EPA announced on September 4, that the six-month reporting period would not open until July 11, 2025, with a deadline of January 11, 2026, thus providing some degree of relief to the many companies struggling to locate, extract, and organize what might be a vast amount of historical data.

Takeaway

Much of the information on past PFAS use that must be reported to EPA will eventually become publicly accessible. As a result, manufacturers and importers should closely examine their current labeling and warning programs to head off the already burgeoning cottage industry of class action lawsuits claiming the presence of unannounced PFAS in an almost unlimited variety of consumer products. Targeted product testing should be a part of any PFAS compliance program to mitigate the risk of unwanted and costly litigation.

The ArentFox Schiff Consumer Products and Environmental groups are ready to answer questions about how your company can comply with EPA’s reporting rule. Please feel free to reach out to the authors or any attorney on our Consumer Products team.