PFAS and products: how to prepare for change in Europe

Poly- and perfluoroalkyl substances (PFAS) are present in most supply chains and consumer products. As the regulatory landscape surrounding these chemicals evolves, it is crucial for businesses to start taking action to future-proof their business.

Benefits and concerns

PFAS are a class of over 10,000 chemicals known for their beneficial properties, including tolerance to extreme temperatures and the ability to repel oil and water. Consequently, they are used in thousands of consumer products, including non-stick cookware, stain-resistant surfaces, toys, dental floss, menstrual products, packaging, food contact materials, furniture, clothing, and cosmetics.

Due to their strong chemical bonds, these “forever chemicals” degrade slowly and persist in the environment for many decades. There is growing concern among consumers and regulators about the environmental contamination and human health risks from PFAS exposure.

Reform on the horizon

Following a 2023 restriction proposal by five EU Member States under the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation, the European Chemicals Agency ran a PFAS consultation and is currently holding committee meetings to assess the resulting feedback. The meetings held in March and June, with a third in September, have focused on the hazards of PFAS in the context of the cosmetics, textiles, food contact materials, packaging, metal products and consumer mixtures (for example, detergents). 

The European Commission president, Ursula Von Der Leyen, has confirmed she is prioritising the introduction of a chemicals package in her political guidelines for 2024-2029. The expectation is that a blanket PFAS ban will be imposed with use-specific time-limited derogations: an 18-month transition period for all PFAS and either a five- or 12-year derogation period for specific uses. The ban would apply to consumer products in which PFAS are present above concentrations limits; normally, 50 parts per million.  

In addition to the review under REACH, the EU has introduced product-specific legislation regulating PFAS. For example, the Packaging and Packaging Waste Regulation, which the European Parliament formally adopted on 24 April 2024, will cover all packaging placed on the EU market and restricts the use of PFAS in food contact materials.

Spotlight on France

In the meantime, some EU Member States are introducing national limits on PFAS. A bill relating to PFAS currently under discussion in France was submitted by French deputies on 20 February this year. After a first reading in the National Assembly and the Senate, the text was sent back to the newly constituted National Assembly for a second reading on 23 July. The text has yet to be definitively adopted.

According to the latest Senate version of 30 May, the bill aims to ban, from 1 January 2026, the manufacture, import, export and placing on the market of cosmetic products, wax products and textiles for clothing and footwear when they contain PFAS in concentrations above a threshold that is to be defined by decree (with an exception for safety clothing and footwear until 2030).

In addition to these bans, measures are provided for in the bill to reduce the concentration of PFAS in water. These include stricter monitoring of the quality of drinking water containing PFAS, the definition of a "national trajectory for the gradual reduction of aqueous discharges of PFAS and the introduction of a charge for water pollution by PFAS.

Is the UK following suit?

In April 2023, the UK Health and Safety Executive (HSE) published its PFAS regulatory management option analysis. Although this is indicative of incoming regulatory change, the UK is behind the EU, with legislation unlikely before 2025 or 2026.

The UK regulator appears to be taking a narrower approach so far to the PFAS phase-out compared to the EU. However, Rachel Reeves, in an interview with the Financial Times prior to the general election and her appointment as UK chancellor, hinted at a Labour government's intention to seek closer alignment with EU rules in areas such as the chemicals sector – so the HSE's narrow approach may change. 

Prepare for phase-out

A PFAS phase out will affect businesses, particularly in the retail and consumer sector, in a number of obvious and less obvious ways. 

Reformulating products

Most businesses do not know whether their products contain PFAS – or at what levels. Changing the manufacturing process or product design to remove or reduce PFAS takes time and careful planning, as well as investment.

Reviewing supply agreements

Contractual protections around PFAS (and sustainability more generally) will need to be drafted into agreements with manufacturers and suppliers. 

Advertising and 'green claims'

Claims such as "non-toxic" are highly scrutinised and need to be both compliant and properly substantiated. As awareness and regulations around PFAS grow, regulators will increasingly factor PFAS into their assessment of whether a claim is misleading.  Regulatory changes concerning PFAS may require green claims to be adjusted so that they don’t present as a benefit something that is required by the law.

Product liability

There is increasing evidence that some PFAS have a detrimental effect on human health. Businesses should be aware of the risk of claims for personal injury, which could include multi-claimant litigation, and should discuss this with their insurers. There is also a risk to factory employees using PFAS as part of the manufacturing process.

Reputational risk and PR

PFAS are in the media spotlight. Businesses should be aware of the power of consumer boycott movements and begin the internal conversation of how they plan to deal with PFAS enquiries from consumers.

Environmental contamination and waste

Even when not present in a final product, PFAS may be used in the manufacturing process. Businesses should check if their supply chain carries an environmental contamination risk. It is anticipated that end-of-life obligations will also affect businesses, as products discarded in landfill leach PFAS over time.

Osborne Clarke comment

Although we do not yet have draft legislation amending REACH in the EU and UK, seismic change around chemicals regulation is underway and pockets of PFAS phase-outs already exist.

Businesses should consider beginning an internal conversation around PFAS, as changes to supply chains take time, and mapping out areas of risk, which is a good way to prepare for a need or invest as phase-out obligations are drafted into law.