The State of Michigan recently took another step aimed at protecting the environment and public health from the impact of per- and polyfluoroalkyl substances (PFAS). Last week, State Rep. Penelope Tsernoglou (D-East Lansing) and Majority Floor Leader Abraham Aiyash (D-Hamtramck) introduced The Hazardous Products Act under House Bill 5657 (the “Legislation”), which would prohibit, the sale and distribution of products containing intentionally added PFAS by Jan. 1, 2027, including, without limitation, cookware, cosmetics, and children’s products. The Legislation would also prohibit the discharge or use of PFAS-containing class A or class B firefighting foam by Jan. 1, 2027. The Legislation has roughly 20 co-sponsors and was referred to the Michigan House’s Natural Resources Committee.

If enacted, the Legislation would ban the sale of products that contain intentionally added PFAS. The Legislation defines “PFAS” as a “perfluoroalkyl or polyfluoroalkyl substance that includes any member of the class of fluorinated organic chemicals containing at least 1 fully fluorinated carbon atom.” Under the Legislation, PFAS is intentionally added if the PFAS added by a manufacturer “has a functional or technical effect on a product, or a component thereof, or the manufacturing process. Intentionally added PFAS includes any PFAS that is a component or a breakdown product of an intentionally added chemical that has a functional or technical effect on the product, or a component thereof, or the manufacturing process.”

Beginning Jan. 1, 2027, the Legislation would also require the manufacturer of a product sold in Michigan and containing intentionally added PFAS to submit to Michigan’s Department of Environment, Great Lakes, and Energy (EGLE), and any person that will sell, offer, or distribute the product for sale, a notice with the following information: (a) a description of the product; (b) information regarding why PFAS was added to the product; (c) the amount of PFAS used in the product; (d) the name, address, and telephone number of the manufacturer and its agent; and (e) any additional, relevant information.

Similar to Amara’s Law in the state of Minnesota, the Legislation would allow EGLE to exempt certain products or components if EGLE determines those products meet the definition of a “currently unavoidable use.” The Legislation defines “currently unavoidable use” as a use of PFAS that EGLE has determined by rule to be temporarily essential if all of the following are met:

  • There are no reasonably available safer alternatives to the PFAS that are used in the product;
  • The PFAS’s function in the product is necessary for the product to work; and
  • The PFAS is being used in a product that is critical for health, safety, or the function of society.

The Legislation also proposes penalties for each violation of the proposed regulations. The penalties would increase for each subsequent violation.

Like legislation in other states, including Amara’s Law in Minnesota, the Legislation’s blanket ban on intentionally added PFAS will significantly impact a variety of businesses if passed, including those involved in the following industries: apparel, food packaging, home goods, cosmetics, energy, health products, furniture, and cleaning products.

The Legislation would affect any manufacturer of a product or product component sold, offered for sale, or distributed in Michigan that contains intentionally added PFAS. Under the bills, “manufacturer” means “a person that manufactures a product or whose brand name is affixed to the product that is sold or offered or distributed for sale in this state.”  Manufacturers, as defined by the Legislation, may be located in or outside Michigan and may include people or entities not typically considered “manufacturers,” like retailers with a brand name or private label brand name affixed to products. Notably, “manufacturer” does not include any person who sells, offers for sale, or distributes in Michigan products for which federal law governs the presence of PFAS in the product.

This proposed Legislation is more expansive than Amara’s Law in Minnesota, as the Legislation would also prohibit, by Jan. 1, 2027, the manufacture, sale, offering for sale, or distribution for sale or use in Michigan of class A or class B firefighting foam that contains intentionally added PFAS. Importantly, this does not apply to PFAS-containing firefighting foam that is subject to regulation under federal law. The Legislation also uniquely requires that, by Jan. 1, 2027, a person who sells firefighter personal protective equipment (PPE) in this state must provide a written notice to the purchaser at the time of sale that the firefighter PPE contains intentionally added PFAS and the reason the PFS were added.

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