We recently reported on the EU’s European Commission’s plan to develop and implement an action plan regarding the use of PFAS in Europe. They key takeaway from the European Commission’s stated plans for a future proposal is that the commission may try to enact legislation that completely bans PFAS in EU member states, except in instances of “essential use.”  However, the European Commission provided no guidance or insight into how it will define “essential use.” We predicted that the debates over the ultimate definition of this term will be hotly debated among scientists, politicians, NGOs, industry representatives, and various interests groups. Some indications of how the European Commission may define the term, though, could lie in already existing legislation and treaties among nations on other issues.

In 1987, the Montreal Protocol was signed and ratified by 197 nations.  The treaty was designed to protect the ozone layer by phasing out the production of numerous substances that were agreed by the ratifying nations to be responsible for ozone depletion. However, built into the treaty was an exception for substances whose use was deemed to be “essential.” The Montreal Protocol states that a use is “essential” only if:

1. It is necessary for the health and safety—or is critical for the functioning—of society (encompassing cultural and intellectual aspects).
2. There are no available technically and economically feasible alternatives or substitutes that are acceptable from the standpoint of environment and health.

Production and consumption, if any, of a controlled substance for essential uses is permitted under the Montreal Protocol only if:

1. All economically feasible steps have been taken to minimize the essential use and any associated emission of the controlled substance.
2. The controlled substance is not available in sufficient quantity and quality from the existing stocks of banked or recycled controlled substances.

Many lauded the approach taken by the Montreal Protocol as a risk management approach that balances the realities of both global warming and manufacturing realities, while at the same time fostering the development of alternatives to the controlled substances.

With respect to PFAS, the European Commission’s suggestion that only “essential uses” would be permitted is not the first time such a proposal has been made.  In 2015, in the “Madrid Statement” (which claimed to have documented the scientific consensus regarding PFAS health hazards) also advocated for limiting PFAS to only “essential uses.” The Madrid Statement, however, did not define what it meant by “essential use”, as the Montreal Protocol did.

The Montreal Protocol provides a good predictor for early risk management for companies awaiting clarification from the European Commission as to whether they will establish a ban of PFAS for all but “essential” uses and, if the Commission takes this action, what the definition of “essential” might look like. It will be impossible for the European Commission, though, to delineate a full list of “essential” versus “non-essential” uses – while something such as PFAS water repelling raincoats are likely “non-essential” given that there are alternates for water repellents to PFAS, what about PFAS-containing personal protective equipment (PPE) that may make it less likely that viruses adhere to PPE worn by medical professionals treating patients infected with COVID-19 or a host of other diseases? Is such a use “essential” and necessary or simply preferred given the alternate – i.e., the increased risk to human health? These and countless other product specific questions await the European Commission and companies in the future, although with proactive risk management and compliance strategies and planning, companies can prepare now and begin early research into viable and cost-effective substitutes.

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.