18 May 20236 minute read

Minnesota’s upcoming PFAS in Products law portends a potentially heavy compliance lift for businesses

Minnesota is on the verge of passing the nation’s most sweeping – and controversial – requirements and restrictions of per- and polyfluoroalkyl substances (PFAS) in products sold and distributed to the state. This month, a Minnesota legislative conference committee reached a deal on language to include in a broader omnibus environmental budget bill, HF 2310, to incorporate a variety of PFAS reporting requirements and prohibitions that will likely impose significant compliance obligations on regulated stakeholders, all while potentially outpacing developing science and technology.

Exploring the proposed legislation

Minnesota’s proposed law substantially mirrors Maine’s wide-reaching PFAS in Products law, as we previously covered here, but with added teeth and less likelihood of implementation delays. Specifically, key provisions of the bill include:

Broad definition of PFAS: Like Maine and other states, Minnesota’s proposed law broadly defines PFAS as “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” This definition strays from the US Environmental Protection Agency’s classification of PFAS, and contemplates numerous compounds not presently understood as PFAS or capable of precise identification or quantification through current analytical technology. However, this potentially broad application may be diluted by the proposed law’s focus on intentionally added PFAS, which means “PFAS deliberately added during the manufacture of a product where the continued presence of PFAS is desired in the final product or one of the product’s components to perform a specific function.”

Product reporting requirement: Minnesota’s bill would require manufacturers of products sold, offered for sale, or distributed in Minnesota – broadly defined to include any person that “creates or produces a product or whose brand name is affixed to the product” and the “importer or first domestic distributor” – to submit a notification to the Commissioner of the Minnesota Pollution Control Agency (Agency) on or before January 1, 2026 disclosing which products contain intentionally added PFAS. For each reported product, manufacturers would also need to disclose, among other details but most notably, a product description (including UPC and SKU codes), the exact amount of intentionally added PFAS and corresponding CAS number absent an Agency-approved reporting range, and the purpose for which PFAS are used. Manufacturers may be able to report by product category if Agency approval is sought and obtained in advance. The bill prohibits the sale, offer for sale, and distribution of applicable products which manufacturers have failed to report.

Product testing contemplated: Unlike Maine’s law, Minnesota’s bill expressly contemplates product testing as a component of reporting compliance activities. Where the Agency has reason to believe that a product contains intentionally added PFAS, it can direct manufacturers to provide product testing results within 30 days to demonstrate compliance with the reporting requirement, along with a certification attesting that a product contains no intentionally added PFAS. Whether the testing required is analyte-specific or a generic fluorine analysis (eg, total or extractable organic fluorine), and how Minnesota will tackle the fluctuating state-of-the science surrounding generally accepted testing methods, is unknown. But, regulated businesses may need to proactively test products to ensure compliance with this proposed law if enacted – a costly venture with reliability hurdles and potentially limited practical application given the current analytical limitations of PFAS testing technology.

Phased product ban from 2025-2032: Beginning January 1, 2025, the proposed law would prohibit any person from selling, offering for sale, or distributing for sale in Minnesota the following products containing intentionally added PFAS:

  • Carpets and rugs
  • Cleaning products
  • Cookware
  • Cosmetics
  • Dental floss
  • Fabric treatments
  • Juvenile products
  • Menstruation products
  • Textile furnishings
  • Ski wax
  • Upholstered furniture

From January 1, 2025 through January 1, 2032, the Agency may also issue rulemakings identifying and prohibiting additional products that are sold, offered for sale, or distributed in the State and contain intentionally added PFAS. Finally, beginning January 1, 2032, this bill would prohibit the sale or distribution of any product containing intentionally added PFAS unless the Agency has determined by rule that the use of PFAS in a specific product constitutes a currently unavoidable use.

Minimal exemptions: The proposed bill exempts very few products from the reporting requirements and eventual prohibitions. It exempts only (1) products for which federal law governs PFAS contents and preempts state laws; (2) firefighting foam; (3) food packaging; and (4) the sale or resale of used products. Pesticide manufacturers can fulfill the product reporting requirements by submitting the required information as part of the State’s annual pesticide registration and approval processes.

Agency rulemaking may not occur: Unlike Maine, Minnesota’s proposed law would make an implementing rulemaking permissive but not mandatory. Therefore, if enacted, the proposed law’s timelines and deadlines may stand by the statutory timeframes and not face delays caused by any untimely rulemaking process by the Agency.

No express CBI protections: Notably missing from the proposed bill are any express protections from public disclosure for confidential business information included in product notification submissions. Regulated entities would have to rely on preexisting Minnesota law for public record access, where and if applicable, and risk public disclosure of potentially sensitive product information.

Looking ahead

Minnesota’s PFAS bill will likely pass both state legislative chambers, obtain Governor Tim Walz’s signature, and become enacted into state law. If and when this bill becomes law, stakeholders across numerous industries will face significant compliance workstreams in the shorter term and potentially elevated litigation, enforcement, and business reputational risks in the longer term.

It is crucial that businesses obtain a head start on building awareness of this upcoming regulatory scheme and preparing in advance for compliance. This includes:

  1. Reaching out to your trusted counsel
  2. Conducting a portfolio review for products that may meet this broad PFAS definition
  3. If not already done, conducting a review of your business in Minnesota for relevant products
  4. Planning for appropriate testing which may be required here
  5. Considering applying for a reporting extension
  6. Starting to draft materials necessary for compliance.

DLA Piper’s Environmental team continues to monitor and evaluate Minnesota’s PFAS bill as it evolves and finalizes. Our team understands that every business’s situation is unique, and we pride ourselves on assisting clients with navigating the complex web of continuously evolving PFAS laws in a manner that suits their individual respective needs and goals. For questions or assistance, please contact the authors.