Industries Answer Trump’s Call for State PFAS Laws Causing Harm

Numerous trade associations seized on an unusual Trump administration request seeking information about state chemical laws causing significant harm to the US economy and responded with two federal remedies in mind: more clarity and more control.

The Department of Justice and National Economic Council received more than 200 responses largely from manufacturing trade groups following the agencies’ August request. Among these were responses from the apparel, pharmaceutical, semiconductor, and toy industries detailing problems caused by state chemical regulations—particularly those for per- and polyfluoroalkyl substances (PFAS).

An executive branch focus on PFAS with the greatest potential to harm, nationwide testing standards, clarity over whether existing federal rules preempt state regulations, and new federal PFAS-in-products regulations that preempt state rules are among the solutions groups mentioned in comments and subsequent interviews.

The Trump administration’s interest in state laws follows its lawsuits challenging New York, Vermont, Michigan, and Hawaii efforts to collect billions of dollars from oil companies for damage caused by climate change.

But the August request raises concerns that federal intervention could infringe on authority the US Constitution gives states to pass laws protecting residents’ health, safety, and welfare.

State Regulatory Patchwork

At least 20 states have banned PFAS—colloquially called “forever chemicals"—from more than a dozen types of products including artificial turf, cookware, cosmetics, food packaging, furniture, toys, and firefighting foam, according to information from Safer States and Bloomberg Law’s reporting.

Some laws also require companies to disclose information about the PFAS in those products.

Many states use a broad PFAS definition that, according to a recent American Chemical Society Analysis, includes more than 350,000 compounds with the largest portion being in the pharmaceutical, plastics, and agrochemical sectors.

Laws Minnesota, Maine, and New Mexico passed to regulate PFAS in all products prompted the most concern in manufacturing trade groups’ comments.

Those statutes are the tip of a growing iceberg of PFAS-in-products laws creating a regulatory maze burdening the national economy and interstate commerce, wrote Beveridge & Diamond PC, which serves as counsel for the PFAS Pharmaceutical Working Group, in their comments.

“The supply chain doesn’t allow for state-by-state product design,” said Kathrin Belliveau, chief policy officer for the Toy Association.

If a company sells its products on Amazon, for example, it has no way to control where that toy will be sold, she said. “We’re looking for the federal framework that exists to be strengthened to deal with these regulations that are evolving at the state level.”

Federal Preemption

The Toxic Substances Control Act (TSCA) illustrates a useful federal framework, said Kimberly Wise White, a vice president at the American Chemistry Council, which submitted comments.

The law requires the Environmental Protection Agency to use the best available science to decide whether a chemical’s risks warrant controls, she said.

TSCA can preempt state chemical regulations, but states also can leverage the science the EPA uses to make their own decisions to benefit their communities, White said.

The EPA, however, has not acted to broadly restrict PFAS, SEMI, which represents semiconductor equipment and materials manufacturers, told the DOJ and council.

“The ability of the federal government to preempt state regulations on PFAS is predicated on either changes to the TSCA statute or regulatory action on the part of EPA,” SEMI said.

Other trade groups agreed TSCA or other regulations could reduce problems caused by divergent state rules. In other cases, the government needs to clarify that federal regulations already preempt state controls, industry groups said.

The Food and Drug Administration’s rules for drugs, biologics, animal drugs, medical devices, along with packaging of those goods, should be recognized as preempting state rules, the PFAS Pharmaceutical Working Group said.

“The federal government has the power to invalidate state laws through preemption under the supremacy clause of the Constitution,” said Michael Mims, a shareholder at Liskow & Lewis APLC, specializing in commercial and environmental litigation.

But the federal government hasn’t typically demonstrated the desire or the resources to step in, so “states will continue to have freedom to impose their own regulations, which may differ from one another,” he said.

That’s going to create some burdens on interstate commerce, but “our system of federalism means that states are going to have these powers, except for areas where Congress has deemed it to be an exclusively federally-regulated area,” Mims said.

The federal government also could choose to intervene in lawsuits challenging state statutes, said Rod Smolla, a law professor teaching at the Vermont Law and Graduate School.

Another strategy is creating a federal uniform reporting system for the roughly 800 commercially active forms of PFAS, and then focusing on those with the riskiest potential, said Kevin Fay, executive director of the Sustainable PFAS Action Network that represents PFAS producers and downstream users, which submitted comments. “We don’t need 50 reporting programs.”

Unprecedented Effort

Several attorneys said the administration’s information-collection effort is unusual.

“It’s really encouraging,” said Whitney Miner, a Benesch, Friedlander, Coplan & Aronoff LLP attorney specializing in consumer and intellectual property law.

The initiative starts a conversation about what all parties can do to create a more consistent, clear baseline for PFAS that protects consumers while making compliance predictable and practical for companies, she said. “Businesses want consistency not less safety.”

“I don’t know of any precedent for this” effort to intervene in decisions local governments and states have made about the products they want in their community and the chemicals they choose to be exposed to, said Wendy Wagner, a law professor at the University of Texas at Austin.

The regulatory space deals with who decides what people are exposed to, which raises the question of whether an industry can force its PFAS-containing products on a state’s residents, she said.

The result could be that people are told “you have to accept these products in your community,” even if they could harm pregnant mothers and their offspring, Wagner said. “That’s really worrisome and a big change from how we’ve understood federalism.”