The State of Minnesota is less than one month away from banning the sale, offer for sale, or distribution for sale of 11 categories of consumer products if those products include intentionally added per- or polyfluoroalkyl substances (PFAS). These bans are part of a comprehensive 2023 law (Amara’s Law), codified at Minn. Stat. § 116.943, designed to identify and limit the presence of PFAS in products. Minnesota’s forthcoming product bans will be the most extensive of any state to date, with additional bans and product registration requirements coming over the next several years.
Product Bans, Now and in the Future
Beginning January 1, 2025, products within 11 different categories cannot be sold, offered for sale, or distributed for sale in Minnesota if the products contain intentionally added PFAS. “Intentionally added” in this context means “PFAS deliberately added during the manufacture of a product where the continued presence of PFAS is desired in the final product or one of the product’s components to perform a specific function.” The 11 product categories banned beginning January 1st include: (1) carpets or rugs, (2) cleaning products, (3) cookware, (4) cosmetics, (5) dental floss, (6) fabric treatments, (7) juvenile products, (8) menstruation products, (9) textile furnishings, (10) ski wax, and (11) upholstered furniture. Manufacturers also must notify persons who sell or offer for sale a product that has been banned in Minnesota. They must then provide the commissioner of the Minnesota Pollution Control Agency (MPCA) — the state agency charged with implementing and enforcing the PFAS product statute — with a list of the names and addresses of those notified. The commissioner herself also may make these same notifications.
The commissioner, in the period between January 1, 2025, and January 1, 2032, may identify additional product categories or uses with intentionally added PFAS that cannot be sold, offered for sale, or distributed for sale in Minnesota. Regardless of whether she does so, beginning January 1, 2032, no person shall sell, offer for sale, or distribute for sale any product with intentionally added PFAS within Minnesota unless the commissioner has determined by rule that the use of PFAS in the product is a “currently unavoidable use.” “Currently unavoidable use” means “a use of PFAS that the commissioner has determined by rule under this section to be essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.” None of the products banned as of January 1, 2025, are subject to the “currently unavoidable use” exemption.
Information Requirements for Other Products
Manufacturers of products not subject to the January 1, 2025, ban will still have compliance obligations in advance of the 2032 ban if they wish to continue to sell or distribute products within Minnesota. Specifically, manufacturers with products that are not subject to the 2025 ban but that nevertheless have intentionally added PFAS within them must provide certain information about those products to the MPCA commissioner no later than January 1, 2026. This includes, among other things, a brief description of the product and the amount and purpose(s) of PFAS used in the product. The failure to submit the required information means the product cannot be sold or distributed within the state after January 1, 2026, until the manufacturer satisfies this submission requirement.
Manufacturers subject to these later bans must comply with the same notification requirement that apply to the January 1, 2025, ban. This includes manufacturers who cannot provide products into the state because they have failed to provide timely information to the commissioner.
The commissioner may direct a manufacturer offering a product for sale in the state to provide her with testing results within 30 days that demonstrate the amount of each of the PFAS in the product, if she has reason to believe a product contains intentionally added PFAS. If testing demonstrates it does not, the manufacturer must certify that to the commissioner and provide her with the testing results and any other relevant information. A manufacturer whose testing demonstrates the presence of intentionally added PFAS also must supply those results to the commissioner, along with the product information referenced above.
Finally, not every product is subject to the forthcoming prohibitions and requirement. Products for which federal law governs the presence of PFAS in the product in a manner that preempts state authority, firefighting foam and food packaging already regulated under other Minnesota statutes, used products, and many types of medical devices and drugs are exempt from some or all of the bans, testing, or information submission requirements summarized above.
MPCA’s Implementation Efforts
The legislation that created these new requirements also requires MPCA to promulgate rules to implement them. Since September 2023, MPCA has solicited comment on rules governing the reporting requirement set to begin in 2026, fees MPCA may charge those submitting that information as a way to fund its governance efforts, and the parameters of the “currently unavoidable use” exemption that takes effect in 2032.
MPCA must have the rules governing the reporting requirement and the possible associated fees in place by the statutory reporting deadline of January 1, 2026. When it will issue a draft of those rules remains uncertain, however, particularly given a recent request for comments on the possibility of combining the two rules. MPCA’s target deadline for issuance of draft rules on the “currently avoidable use” exemption is currently listed on its website as “To be determined.”
MPCA also has been offering public information sessions updating stakeholders on the status of its rulemaking efforts and on the January 1, 2025, product ban. For instance, MPCA has posted a recording of a late summer webinar for retailers and manufacturers on the pending ban, as well as questions and answers generated in the chatroom during the webinar, on its website.
Tips for Manufacturers and Retailers
A great deal of legal developments on these issues will take place in Minnesota in the coming months and years. Retailers within the state and manufacturers who provide them with products are advised to take the following steps to stay on top of these developments:
- Assess your products for the presence of intentionally added PFAS. Manufacturers and retailers should be seeking information and assurances regarding the presence of intentionally added PFAS in the materials and products supplied or sold to them. This is particularly important for those who sell, distribute, or offer for sale products on the 11 categories subject to the ban taking effect this coming January 1st.
- Stay abreast of MPCA rulemaking developments. At this point, MPCA will be seeking comment on, then finalizing, rules associated with the January 1, 2026, product information submission requirement less than one year before that requirement takes effect. Manufacturers who may be subject to this requirement, in particular, should track MPCA’s rule promulgation efforts on its website and, while there, sign up to receive updates through the site’s “Stay Connected” feature.
- Consult with legal counsel for interpretive and compliance assistance. Minnesota is the first state to implement product bans and information submission requirements this extensive, after Maine scaled back the scope of its original effort in those spaces. Difficult legal and practical questions are likely to arise as this unprecedented effort continues to unfold in the months and years to come. Fredrikson’s team of environmental attorneys have advised clients on these requirements since their inception and, as such, are uniquely qualified to counsel retailers and manufacturers as they navigate this new regulatory regime. Please contact our Environmental Law team if we can be of service in any way.
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