Read the full article by Laura Brown (Minnesota Lawyer)
“In its last session, the Minnesota Legislature approved a ban on ‘forever chemicals,’ becoming one of the first states in the nation to do so. Thomas Braun, a partner at Stoel Rives, shares his insight about the impact of the legislation.
Perfluoroalkyl and polyfluoroalkyl substances—called PFAS—are chemicals used in manufacturing since the 1940s. They are present in a variety of products, from stain-resistant carpets to nonstick cookware. These chemicals can get into the environment during both production and use. The CDC says that while it is unclear what effects PFAS have on humans and animals, some scientific studies have shown that exposure can cause harmful health consequences.
Minnesota’s PFAS ban, also called Amara’s Law, is a response to alleged harm caused by PFAS. Amara Strande, a 20-year-old who grew up in a St. Paul suburb, died of liver cancer. She believed she got cancer through groundwater contaminated by PFAS.
‘Minnesota is at the forefront of this state-led movement towards PFAS bans,’ Braun said. ‘There are a number of states that have instituted them.’
Minnesota is just the second state to pass such a widespread ban on PFAS in products (the other state is Maine). The statute prohibits the sale, offer for sale, and distribution of products where PFAS has been intentionally added. Starting in 2025, Minnesota will prohibit many products where PFAS has been intentionally added—things such as dental floss and kid’s products. By 2032, nothing with intentionally added PFAS can be sold unless it’s deemed essential for the health, safety, or functioning of society and there are no reasonable alternatives. Those that do not comply may face civil penalties or criminal charges at the misdemeanor level.
There are some limited exceptions to this ban.
‘There is a specific exemption for prosthetic or orthotic devices, and any product that is in a medical device or product that is otherwise used in a medical setting,’ Braun said. ‘More broadly, the ‘unavoidable use’ is defined as use ‘essential for healthy, safety, and the functioning of society’ and ‘there is no reasonable alternative available.’’
The Minnesota Pollution Control Agency commissioner will have a lot of latitude in determining the unavoidability of PFAS.
‘On the ban, if the commissioner determines that the use of PFAS is ‘unavoidable,’ the sale, offer for sale, and distribution can continue,’ Braun said.
The ban has been applauded by environmental organizations.
‘Minnesota is the origin story of PFAS, so it is wonderful to be the place it ends,’ stated Andrea Lovoll, legislative director of the Minnesota Center for Environmental Advocacy.
The chemicals were invented by Maplewood-based 3M, which has announced that it will stop manufacturing PFAS and discontinue their use in products.
‘While PFAS can be safely made and used, we also see an opportunity to lead in a rapidly evolving external regulatory and business landscape to make the greatest impact for those we serve,’ said 3M’s CEO, Mike Roman.
Minnesota prohibited PFAS in food packaging in 2021.
‘The statute itself is an extension,’ Braun stated. ‘Initially, it was food packaging. Now, it’s a greater category of products starting in 2025. Eventually, there will be a general ban with limited exceptions in 2032. Layer on top of that, then, regulations related to the amount of PFAS that can be in water, wastewater, air emissions, soils, it’s going to keep moving forward.’
In counseling clients about the impact of the PFAS, Braun—while stressing that the ban is ‘not a huge sea-change’—advises them to understand that this regulation of PFAS is likely not the last ban.
‘This is the leading edge of PFAS regulation, but it is not going to be where it ends,’ Braun stated. ‘It is only going to grow from here, both in geographic scope—as there are going to be other states that do the same. Establishing good practices now in Minnesota will be beneficial for the future.’
Importantly, the ban applies not just to manufacturers but also to retailers.
‘The big impact on anybody who sells, offers for sale, or distributes for sale products containing PFAS in Minnesota will have to really examine their products and supply chains because this law covers products and all of their components,’ he said. ‘If you think about how many things are in any given product, the person offering them for sale is now responsible for all of those components and knowing what’s in them. If there is intentionally-added PFAS in them, they are now responsible for that.’
‘I would counsel clients to examine their contracts with suppliers to see if there is room for building in a PFAS-related provision,’ Braun advised.
Another component of the ban is an information submission requirement. It will require manufacturers to provide the Minnesota Pollution Control Agency with information about their products if they contain intentionally-added PFAS. The commissioner can decide that the information does not need to be resubmitted if it is determined that the relevant information is otherwise available publicly for a product or a class of products.
‘That information is likely going to be public information now, and if someone who is so inclined to look for that information because they think that they have been harmed in some way by PFAS, they will have a ready list of companies that have offered products for sale in Minnesota that contain PFAS,’ Braun noted. ‘There could be repercussions for that.'”…