European PFAS ban proposal submitted for consultation

The ban

The proposed ban will work through REACH. REACH is the European regulation on the production and trade of chemicals. Acting in violation of relevant sections of REACH is prohibited under the Environmental Management Act. ECHA is the agency that implements EU chemicals legislation, including REACH, and is handling the submitted PFAS restriction proposal.

The proposal covers PFAS in a broad sense, namely PFAAs, fluoropolymers and fluorinated gases. A small group of fully degradable PFAS is excluded from the ban as proposed. The proposal seeks to ban the production, marketing and use of PFAS. The ban covers the production of actual PFAS, as well as PFAS that are a component of another substance, mixture or object. The concentration is important (from 25 ppb (parts per billion) for individual PFAS, from 250 ppb for the sum of individual PFAS, and from 50 ppm (parts per million) for PFAS in general). The proposed form of the ban is a full ban, effective 18 months after the decision on the proposal is made by the European Commission. We expect that, if the proposal is adopted, the ban will have a major impact, because PFAS are found in many products and production processes. Some temporary use-specific exemptions will apply, however, and some non-temporary exemptions for specific uses. Examples of temporary exemptions include PFAS in medical device tubing and catheters, air conditioning in cars with internal combustion engines (all for a period of 5 years), oil extraction and mining operations, professional protective clothing, and implantable medical applications (all for a period of 12 years). See Table 9 of the proposal (pp. 115-137) for a complete list of exemptions.

Scheduled consideration of restriction proposal

As explained above, the consultation following the proposal for a European PFAS restriction runs until 25 September 2023. ECHA scientific committees will issue opinions on the proposal in the course of 2024. The European Commission’s decision on the proposal is scheduled for 2025. If it decides to implement the ban, it will enter into force in 2026/2027.

The consultation

At this stage, it is important for companies to identify the use of PFAS in production processes and the products being produced or used, in order to assess the extent to which the proposal affects the company. If, based on that inventory, it seems useful to submit a response to the consultation, you may do so until 25 September 2023. Through that route, information can be submitted on the use of PFAS and the implication of the restriction. That information can then be taken into account by ECHA’s scientific committees when considering the proposal.

ECHA has published guidance for providing input in consultations. In the guidance, ECHA emphasizes, among other things, that it is best to submit information as soon as possible to ensure that the ECHA Scientific Committees can make the best use of this information. If some of the information can be collected quickly and some cannot, ECHA recommends submitting the information via two separate responses. Note: the guidance also emphasizes that the comment submitters are responsible for removing the confidential information from the non-confidential parts of the response.

Responses (as we understand it from the Dutch National Institute for Public Health and the Environment (RIVM)) are best submitted as soon as possible and on a sector-by-sector basis, to ensure that they are included as much as possible in the decision-making process surrounding the proposed ban. Before the scientific committees issue their opinions on the proposal, comments can still be incorporated in substance; after that, only political decision-making will take place and it will be more difficult to influence the details.

Online information session on 5 April

An online information session on the proposal was held on 5 April. During the session, experts from ECHA and the five national authorities explained the process of considering the proposal, the content of the proposal and how to participate in the consultation.

The session was held in English and can be viewed directly via this link.