Amendment ID: S3050-254
Amendment 254
Turning Off the PFAS Spigot
Mr. Cyr, Ms. Kennedy, Ms. Comerford, Messrs. Collins, Keenan and Fernandes, Ms. Miranda, Ms. Howard, Messrs. Moore, Gómez, Payano and Eldridge and Ms. Lovely move that the proposed new draft be amended by adding the following sections:-
SECTION X. Chapter 111 of the General Laws is hereby amended by adding the following section:-
Section 5U. Consumer products
(a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-
“Child passenger restraint”, a child passenger restraint under G.L. c. 90, § 7AA.
“Children’s product”, consumer products intended, made or marketed for use by children 12 years of age or under, including: (i) toys; (ii) children’s clothing; (iii) children's cosmetics and personal care products; (iv) children's jewelry and novelty products; (v) children’s school supplies; (vi) children’s arts and crafts supplies, including model making supplies (vii) children’s bedding, furniture, and furnishings; (viii) child car seats; (ix) products to help a child with sucking or teething, or to facilitate sleep, relaxation, or the feeding of a child; (x) products that meet any of the following conditions, as determined by the department: represented in its packaging, display, or advertising as appropriate for use by children, sold in conjunction with, attached to, or packaged together with other products that are packaged, displayed, or advertised as appropriate for use by children sold in a retail store, catalogue, or online website, in which a person exclusively offers for sale products that are packaged, displayed, or advertised as appropriate for use by children, or sold in a discrete portion of a retail store, catalogue, or online website, in which a person offers for sale products that are packaged, displayed, or advertised as appropriate for use by children; provided, however, that “children’s product” shall not include: (i) batteries; (ii) slings and catapults; (iii) sets of darts with metallic points; (iv) toy steam engines; (v) bicycles and tricycles; (vi) video toys that can be connected to video screen and are operated at a nominal voltage exceeding twenty-four volts; (vii) chemistry sets; (viii) consumer and children's electronic products, including but not limited to personal computers, audio and video equipment, calculators, wireless phones, game consoles, and handheld devices incorporating a video screen, used to access interactive software and their associated peripherals; (ix) interactive software, intended for leisure and entertainment, including computer games and their storage media, including compact disks; (x) BB guns, pellet guns and air rifles; (xi) snow sporting equipment, including skis, poles, boots, snow boards, sleds and bindings; (xii) roller skates; (xiii) scooters; (xiv) model rockets; (xv) athletic shoes with cleats or spikes; (xvi) pocketknives and multitools; (xvii) pharmaceutical products and biologics; and (xviii) medical devices, as defined in the federal Food, Drug, and Cosmetic Act, U,S,C, 21 section 321(h).
“Consumer product,” any article that, to any significant extent, is distributed in commerce for personal use or consumption by individuals.
“Cookware”, durable houseware items that are used in homes and restaurants to prepare, heat or dispense foodstuffs or beverages, including, but not limited to, pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls and cooking utensils.
“Current unavoidable use”, a use of PFAS that the department has determined under this section to be: (i) essential for health, safety or the functioning of society; (ii) necessary for the proper operation and functionality of a product; and; (iii) for which safer alternatives are not reasonably available.
“Department”, the department of public health.
“Distributor”, any person, firm or corporation who takes title to goods, produced either domestically or in a foreign country, purchased for resale or promotional purposes.
“Fabric treatment”, a substance applied to fabric, carpets, rugs, shoes or textiles to impart characteristics, including, but not limited to, stain resistance or water resistance.
“Fully fluorinated carbon atom”, a carbon atom on which all the hydrogen substituents have been replaced by fluorine.
“Intentionally added”, PFAS that is added to a product, or enters the product from the manufacturing or processing of that product; the addition of which is known or reasonably ascertainable by the manufacturer. “Intentionally added” PFAS also includes any degradation by-products of PFAS or the use of PFAS or PFAS precursors as a processing agent, mold release agent, or the creation of PFAS via chemical reactions.
"Known or reasonably ascertainable”, all information in a person's possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know.
“Manufacturer”, any person, firm or corporation that manufactures a product whose brand name is affixed to the product. In the case of a product imported into the United States, “manufacturer” includes the importer or first domestic distributor of the product if the person that manufactured or assembled or whose brand name is affixed to the product does not have a presence in the United States.
“Per- and polyfluoroalkyl substances” or “PFAS”, a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
“Personal care products”, articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness or altering the appearance. Personal care products shall include products such as skin moisturizers, perfumes, lipsticks, fingernail polishes, eye and facial makeup preparations, shampoos, permanent waves, hair colors, toothpastes, sunscreen, hair spray, shaving cream and deodorants, as well as any material intended for use as a component of a cosmetic product. Personal care products shall also include, but not be limited to, menstrual products such as sanitary napkins, menstrual underwear, tampons and underwear liners.
“Priority product,” any child passenger restraint, children’s product, cookware, fabric treatment, personal care products, rugs and carpets, textile, textile furnishings, or upholstered furniture.
“Product component”, a component of a consumer product, including the product’s ingredients or a part of the product, regardless of whether the manufacturer of the consumer product is the manufacturer of the component.
“Product label”, a display of written, printed or graphic material that appears on, or is affixed to, the exterior of a product, or its exterior container or wrapper that is visible to a consumer, if the product has an exterior container or wrapper.
“Retailer”, any person, firm or corporation to whom a consumer product is delivered or sold, if such delivery or sale is for purposes of sale or distribution in commerce to purchasers who buy such product for purposes other than resale.
“Rugs and carpets”, fabric used to or marketed to cover floors.
“Textile”, any item made in whole or part from a natural or synthetic fiber, yarn, or fabric. Textile includes but is not limited to leather, cotton, silk, jute, hemp, wool, viscose, nylon, and polyester.
“Textile furnishings”, textile goods of a type customarily used in households and businesses, including but not limited to draperies, floor coverings, furnishings, bedding, towels, and tablecloths.
“Upholstered furniture'', as defined in G.L. c. 94, § 270.
“Wholesaler,” any person, firm or corporation to whom a consumer product is delivered or sold, if such delivery or sale is for purposes of sale or distribution in commerce to purchasers who buy such product for purposes of resale.
(b) No manufacturer, distributor, wholesaler or retailer shall offer for sale, sell or distribute in the commonwealth any priority products to which PFAS have been intentionally added on or after January 1, 2029. The prohibitions of this subsection shall not apply to the sale or resale of used products.
(c) The department of public health shall identify additional consumer products and other products for restriction. Such identified products shall be subject to the same prohibitions under this section.
(1) No manufacturer, distributor, wholesaler or retailer shall offer for sale, sell or distribute in the commonwealth any consumer product that the department has identified for restriction, including but not limited to priority products, to which PFAS have been intentionally added, unless the department, in consultation with the department of environmental protection and the Toxics Use Reduction Institute, has determined that the use of PFAS in the consumer product is a currently unavoidable use and grants a temporary exemption at intervals of no more than 4 years.
(2) The department may assess a fee to cover the department’s reasonable costs and to support the purposes outlined in this section payable by a manufacturer, distributor, wholesaler or retailer upon submission of an unavoidable use exemption request under section (c) paragraph (5). Fees collected under this paragraph shall be deposited into the PFAS Public Health Trust Fund established under section (j) to be administered by the department for the purposes outlined in this section.
(3) In the event that the department makes such a determination and grants an unavoidable use exemption, the department may require the manufacturer, distributor, wholesaler or retailer to label the product or products in a form and manner determined by the department.
(4) The prohibitions of this subsection shall not apply to the sale or resale of used consumer products that the department has identified for restriction, including but not limited to priority products.
(5) Consumer products or product categories in which the use of PFAS is a currently unavoidable use, as determined by the department, may be exempted for a fee to cover the department’s reasonable costs and to support the purposes outlined in this section, pursuant to a process established by the department..
(6) Annually, not later than December 31, the department shall file a report on the manufacturers, distributors, wholesalers or retailers submitting unavoidable use exemption requests with the clerks of the house of representatives and the senate, the joint committee on public health, and shall make the report available on the department’s website. The report shall include, but not be limited to: (i) the full name of the manufacturer, distributor, wholesaler or retailer applying for an unavoidable use exemption; (ii) if the department granted the manufacturer, distributor, wholesaler or retailer an exemption or not; (iii) the department's reasoning for granting the exemption; and (iv) the length of the exemption.
(d)(1) The department shall, in consultation with the department of environmental protection and the Toxics Use Reduction Institute, prepare a study of significant PFAS uses in consumer products not subject to this section using publicly available information, within 4 years of the passage of this law, and shall update the study within 7 years of the passage of this law. The study shall consider whether: (i) safer alternatives to PFAS are reasonably available; (ii) the function provided by PFAS in the product is necessary for the product to perform its primary function as determined by the department; and (iii) the use of PFAS in the product is essential for health or safety. The report shall recommend additional products and product categories to be considered for restriction under this section.
(2) The department may establish additional consumer products and product components to be considered priority products covered by this section. In identifying additional product categories for analysis, the department shall consult with Toxics Use Reduction Institute and the department of environmental protection.
(e) The attorney general shall have the exclusive authority to enforce the provisions of this section pursuant to G.L. c. 93A, § 4.
(f) (1) Notwithstanding any general or special law to the contrary, the department of public health shall establish, on or before June 1, 2028, a publicly accessible reporting platform to collect information about per- and polyfluoroalkyl substances, or “PFAS”, and consumer products or product components containing PFAS being sold, offered for sale, distributed or offered for promotional purposes in, or imported into, the state. The department may consult with Interstate Chemicals Clearinghouse and other environmental or public health experts, and may collaborate with other states with prohibitions on PFAS to establish such a platform.
(2) On or before June 1, 2028, and on or before June 1 of each year thereafter, a manufacturer of PFAS of a priority product, additional consumer products identified for restriction by the department or product component containing intentionally added PFAS that is sold, offered for sale, distributed or offered for promotional purposes in, or imported into, the state shall register the PFAS or the consumer product or product component containing intentionally added PFAS on the publicly accessible reporting platform created pursuant to paragraph (1), along with all of the following information, as applicable: (i) the name and type of consumer product or product component containing intentionally added PFAS; (ii) the universal product code, or “UPC,” of the consumer product or product component containing intentionally added PFAS; (iii) the name and address of the manufacturer, and the name, address and phone number of the contact person for the manufacturer; and (iv) any additional information established by the department as necessary to implement the requirements of this section.
(3) With the approval of the department, a manufacturer may supply the information required in paragraph (2) for a category or type of consumer product rather than for each individual product.
(4) In a manner determined by the department, a manufacturer shall update and revise the information required under paragraph (2) whenever there is a significant change in the information or when requested to do so by the department.
(5) The department may establish by regulation and assess a fee payable by a manufacturer upon submission of the notification required under paragraph (2) to cover the department’s reasonable costs in developing and administering this section and to support the purposes outlined in this section collected under this paragraph shall be deposited into the PFAS Public Health Trust Fund established under section (j) to be administered by the department for the purposes outlined in this section.
(6) Any information submitted to, or developed by, the department in furtherance of this section, except for the specific information required to be disclosed in subsection (f)(2) of this section shall not be a public record and shall be exempt from disclosure under clause twenty-sixth of section 7 of chapter 4 and section 10 of chapter 66 of the General Laws.
(g) (1) A manufacturer of consumer products registered under paragraph (2) of subsection (f) shall send an electronic notification to distributors and wholesalers of the consumer product that the consumer product contains PFAS.
(2) A distributor or wholesaler who receives a notification pursuant to paragraph (1) shall send an electronic notification to retailers of the consumer product that the consumer product contains PFAS.
(3) The attorney general shall have the authority to enforce the provisions of this subsection under G.L. c. 93A, § 4.
(h) (1) A manufacturer of any priority products that are sold, offered for sale, distributed or offered for promotional purposes in, or imported into, the state shall establish an audit program to test for the presence of unintentionally added PFAS using analytical methods approved by the department in consultation with the department of environmental protection and the Toxics Use Reduction Institute.
(2) The department shall establish by regulation and assess a fee payable by a manufacturer under paragraph (1) to cover the department’s reasonable costs in testing a consumer product for the presence of unintentionally added PFAS at the request of a manufacturer. Fees collected under this paragraph shall be deposited into the PFAS Public Health Trust Fund established under subsection (j) to be administered by the department for the purposes outlined in this section.
SECTION X. The department of public health shall promulgate regulations to implement section 5U of chapter 111 no later than December 31, 2027.