PFAS: uncertainty over future EU regulation set to drift into 2024

PFAS, pre- and polyfluoroalkyl substances, are often colloquially referred to as ‘forever chemicals’ because they degrade very slowly when used and in the environment. Consideration is being given in many jurisdictions to restricting their manufacture, sale, and use – Australia, for example, recently set out plans to introduce national controls on the use, manufacture, import and export of PFAS from 1 July 2025.

Radical proposals to place widespread restrictions on PFAS uses in the EU were put forward earlier this year by five European countries: Germany, Denmark, the Netherlands, Norway and Sweden. A number of industry bodies have raised concerns with those plans, which are currently being scrutinised by scientific committees within the European Chemicals Agency (ECHA).

To inform how those scientific committees respond to the five countries’ proposals, the ECHA opened a consultation in March in which it invited stakeholders to “send in scientific and technical information” on the manufacture, placing on the market and use of PFAS. The consultation closed in September.

The proposals, if implemented, would extensively alter EU REACH, the main EU law protecting human health and the environment from the risks that can be posed by chemicals, and could lead to a ban of over 10,000 PFAS.

Out-Law asked the ECHA when businesses can expect it to respond to the feedback received to its consultation. A spokesperson for the agency declined to specify a timeframe.

The spokesperson said: “We aim to deliver the final opinions to the European Commission in the shortest possible timeframe while ensuring proper scrutiny by the scientific committees. We are currently discussing a work plan for the opinion-development with the five countries that prepared the proposal and will communicate that as soon as it is agreed. This work plan would then indicate also estimated timelines. The five countries and the rapporteurs from RAC (the ECHA’s Committee for Risk Assessment) and SEAC (the Committee for Socio-economic Analysis) will also respond to the feedback received through the consultation in due course.”

Since the consultation closed, concerns have been raised about the enforceability of the proposals, with the ECHA’s Enforcement Forum citing issues pertaining to the scope and clarity of the proposals, and to how compliance might be assessed, among other things. It suggested that an indicative list of PFAS covered by restrictions could be developed and set out in future guidance.

Katie Hancock of Pinsent Masons said: “The proposed restrictions, if adopted, will be wide-reaching and have the potential to fundamentally change the materials used in thousands of products. It looks like businesses will have to wait until into 2024 for clarity on the future regulation of PFAS to emerge, however.”

The EU chemicals strategy produced in 2020 foresees the “phasing out [of] all PFAS, allowing their use only where they are proven to be irreplaceable and essential to society”.