Minnesota Joins Maine in Enacting Comprehensive PFAS Reporting Requirements

Minnesota is competing with Maine to have the most rigorous regulations for per- and polyfluoroalkyl substances (PFAS). Minnesota Gov. Tim Walz signed HF 2310 into law on May 24, 2023. Similar to Maine's PFAS requirements, which were passed in 2021, HF 2310 Section 21 [116.943], titled "Products Containing PFAS" includes reporting requirements, a certificate of compliance process and a total ban effective Jan. 1, 2032. For the reporting requirement, manufacturers must submit the following information by Jan. 1, 2026:

1. a brief description of the product, including a universal product code (UPC), stock keeping unit (SKU), or other numeric code assigned to the product;
2. the purpose for which PFAS are used in the product, including in any product components;
3. the amount of each PFAS, identified by its chemical abstracts service registry number, in the product, reported as an exact quantity determined using commercially available analytical methods or as falling within a range approved for reporting purposes by the commissioner [of Minnesota's Pollution Control Agency (MPCA)];
4. the name and address of the manufacturer and the name, address, and phone number of a contact person for the manufacturer; and
5. any additional information requested by the [MPCA] commissioner as necessary to implement the requirements of this section.

To ease compliance efforts, with prior approval, manufacturers may report on a product category/type basis rather than individual product basis. The failure to report by the deadline constitutes a violation and permits fines of up to $20,000. The statute also grants Minnesota authorities the ability to demand certificates of compliance from manufacturers regarding their products' use of PFAS. A total ban is effective on Jan. 1, 2032, for all products unless the product is "a currently unavoidable use."

Notably, the definition for "currently unavoidable use" is the exact same as Maine's statute, i.e., "essential for health, safety, or the functioning of society and for which alternatives are not reasonably available."

Maine Law and Background

To recap, in July 2021, Maine passed a PFAS reporting law that required reporting of PFAS content by Jan. 1, 2023, unless an extension was granted. Thousands of companies requested extensions. In May 2023, Maine published a list of companies with approved extensions. On June 8, 2023, Maine passed an amendment that extended the reporting deadline (retroactively) for all manufacturers to Jan. 1, 2025. Maine also amended its online website and FAQs.

Maine's law is substantially the same as Minnesota's law. Beyond the reporting requirements and certificate of compliance programs, the Maine law bans the sale of certain products with "intentionally added" PFAS. The law also grants Maine authorities the ability to ban PFAS use in additional categories of products, with a focus on products likely to contaminate the state's land or water resources. To remediate and reduce PFAS contamination, the law creates PFAS contamination education and treatment programs.

A Look at Other States

Several other states are following Maine and Minnesota's lead with similar comprehensive reporting obligations pending. Massachusetts, New York and Vermont have already proposed legislation. The Massachusetts legislation includes a reporting requirement with a deadline of June 1, 2026, as well as a labeling requirement and a complete ban effective Jan. 1, 2030, with the typical "currently unavoidable use" carve-out. Given that 70 of the 200 lawmakers within the Massachusetts Legislature have co-sponsored the bill, passage seems likely. New York's proposed legislation similarly includes reporting requirements, grants state authorities the power to demand certificates of compliance and proposes a general ban by Jan. 1, 2032. Lastly, although Vermont's proposed legislation focused mostly on pesticides and cosmetics, it includes a complete ban on PFAS in all products by July 1, 2030.

With the Northeast Waste Management Officials' Association (NEWMOA) proposing its own model PFAS legislation, it seems likely that other states will follow. NEWMOA is a nonprofit, nonpartisan interstate association whose membership includes state agency programs dedicated to addressing environmental issues. NEWMOA published an initial draft on May 2, 2023, and held a public comment period through June 2023. The model legislation's goals include 1) eliminating the use of PFAS, 2) identifying and implementing source reduction programs, 3) ensuring healthy and effective substitutes, 4) promoting regional coordination and efficiency, 5) providing information for consumers, and 6) giving regulated entities regulatory certainty. The following states' environmental enforcement agencies were involved in creating the model legislation: Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont.

The NEWMOA model mirrors provisions within both Maine and Minnesota's PFAS statutes but also includes new approaches. Similar to Maine and Minnesota, the model legislation includes a complete ban unless an exemption applies. These exemptions mirror Maine and Minnesota's "currently unavoidable" use exception. Uniquely, the model legislation also proposes stricter PFAS labeling requirements, creates a product life cycle management program, and adjusts government contract and purchase requirements to avoid goods or services involving PFAS.

Given the broad application of these state laws, manufacturers across multiple industries would be wise to prepare for the anticipated reporting through careful investigation of their product lines and supply chains.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.