In May 2020, we reported that five European Union countries (Germany, the Netherlands, Norway, Sweden and Denmark) took the first step in an effort to try to restrict the manufacture and sale of all per- and polyfluoroalkyl substances (PFAS) in the EU.  Now, the European Commission (the executive branch of the European Union, which proposes legislation) is planning to develop and implement an action plan regarding the use of PFAS in Europe. Earlier discussions in June among European Commission members revealed that six primary action items were being considered in order to phase out all but “essential uses” of PFAS.  It is expected that the European Commission will publish its action steps by the fall of 2020. However, the publication of these steps is not the final step in the legislative process and there are no set deadlines for later milestones in the European Commission’s decision-making at this point in time.

What is not clear at this stage is what the European Commission will consider an “essential use”, or how that term will be defined; however, regardless of the Commission’s decision, there will undoubtedly be considerable lobbying, argument, and disagreement regarding the Commission’s recommended definition.

For now, the Commission has outlined the following action points for PFAS:

• Ensure through legislation that PFAS use is allowed in the EU only when essential for society;
• Step up initiatives to address PFAS with a group approach with legislation on water, sustainable products, food, industrial emissions and waste;
• Use the expertise of EU member states, the Strategy for a Sustainably Built Environment, the Zero Pollution Action Plan and the revision of the thematic strategy for soil protection to address soil contamination with PFASs;
• Continue working internationally with relevant groups (Stockholm Convention, Basel Convention and the UN’s Globally Harmonized System (GHS)) to address PFAS concerns on a global scale;
• Establish an EU-wide approach and adequate funding to identify and remediate cases of contamination in the environment, as well as legacy presence in products and materials, to monitor PFAS presence in humans and the environment, and to guarantee safe disposal; and
• Provide research and innovation funding for safe substitutes for PFAS and facilitate environmental remediation.

The EU’s initiatives impact not only business based in the EU, but also global businesses selling to EU member states.  While PFAS use in manufacturing and presences in products is sometimes known, with over 7,000 PFAS chemicals in existence, it is often not possible for manufacturers and distributors to know whether a PFAS chemical is in fact used in its products.  Diligent steps must be taken by all manufacturers and distributors to determine the exact contents of products as nations across the globe increase efforts to regulate PFAS, or else companies will be faced with significant litigation woes or last-minute compliance initiatives that can be significant in cost.

CMBG3 Law is following judicial, legislative, and administrative developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.

Authored By:

John Gardella, Esq.