Canada's PFAS Restriction Strategy Adds to US Companies' Hurdles
Attorneys are urging US companies to seize Canada’s offer to weigh in on the country’s recently announced strategy to work toward regulations for PFAS-containing products.
The Government of Canada announced on March 5 that it intends to designate the entire class of PFAS as “toxic” under the Canadian Environmental Protection Act and progressively move towards restricting them.
The unprecedented move positions Canada to be among the world’s leaders in tackling harmful PFAS exposure, said Steven Guilbeault, minister of Environment and Climate Change Canada (ECCC) as he described the regulatory plans. The department, which coordinates Canada’s environmental policies and programs, expects to start proposing rules by 2027.
The regulations will have a big impact on foreign businesses, including US ones, because Canada has very little PFAS manufacturing despite the widespread use of the substances across the economy, Talia Gordner, a partner at McMillan LLP in Toronto, said in an interview. Companies won’t be able to sell PFAS containing materials or products in Canada when the regulations affecting those goods come into effect, she said.
Per- and polyfluoroalkyl substances, a class of what Canada estimates to be 15,000 chemicals, are used in thousands of consumer, commercial, and industrial products because even tiny amounts give fluids and manufactured goods made with them special heat-, oil-, water-, friction, and corrosion-resistant properties.
“I can’t think of a single product that doesn’t have PFAS in some way” either as an ingredient, a production aid, or incorporated into a product’s components, said Stacy Tatman, an attorney and public policy adviser at Wiley Rein LLP, who co-chairs the PFAS Complex Products Manufacturers Coalition the firm counsels.
The announcement came as tariff tensions mount between Canada and the US, and any new, broadly targeted policy creates challenges for the regulated community, she said. Yet, “the government is doing a great job letting the community of stakeholders weigh in,” she said.
May 7 Deadline
Canada’s multiyear, three-phase process starts with a data gathering period ending on May 7.
Information the government seeks includes: the availability of PFAS alternatives; products currently using alternatives; time and challenges needed to switch to alternatives; and the amounts, concentrations, and uses of PFAS in products made in, imported into, and sold in Canada.
The government’s willingness to accept information and comment from parties including ones outside Canada is an advocacy opportunity, Tatman said.
Canada intends to designate too many PFAS as toxic, said Fredric P. Andes a partner with Barnes & Thornburg LLP, who counsels the PFAS Regulatory Coalition, which includes companies, municipal entities, agricultural parties, aviation representatives, and trade associations involved with or affected by PFAS, but not producers of the chemicals.
Although ECCC delayed actions on fluoropolymers—types of PFAS commonly used in divergent industries—the toxicity, potential to build up in the food chain, and other differences among the chemicals extends beyond the PFAS class and fluoropolymer subset, he said.
“To regulate them all together, as if they have common characteristics that can form the basis for common requirements, is just not appropriate,” Andes said. A more targeted approach is necessary to achieve environmental and public health goals, he said.
Phased Rulemaking
ECCC has been working to prohibit older, highly persistent types of PFAS in fire suppressants and expects to ban them this spring, according to its March 5 regulatory plan.
Under its newly announced strategy, the department will invite interested parties to join PFAS Public Forums to work in a phased approach to limit more PFAS used in a broader product range, Guilbeault said.
The first phase will focus on identifying substitutes for newer types of PFAS used in fire suppressants such as aqueous film-forming foam (AFFF), which has widely been used for flammable liquids including those at oil and gasoline refineries. ECCC anticipates proposing rules for these suppressants in spring 2027.
Scott Thurlow, a consultant with the Chemical Industry Association of Canada, said he’s confident the government’s first phase of AFFF regulations will provide exceptions for highly hazardous situations, like large fuel stores.
Canada has carved out exemptions for hazardous situations in the past in regulations that govern smaller groups of PFAS, Thurlow said. “Canada is not going to compromise the safety of communities,” he said.
Phase two will focus on a broad group of consumer-facing products like food packaging, cosmetics, and textiles where PFAS alternatives are known to exist. Only products “not needed for the protection of health, safety or the environment,” will be affected, according to ECCC.
Finally, the government will focus for an undetermined time on finding PFAS alternatives for prescription drugs, medical devices, fluorinated gas refrigerants, and additional industrial and military applications of the chemicals, ECCC’s plan said.
Example products would include electric vehicles or charging stations, which can’t be made without fluorinated chemistry, Thurlow said.
The stepwise, public approach the government plans for all three phases is important, because it’s an enormous challenge—even for simple substitutions—to find alternatives that meet regulatory and safety requirements along with consumer expectations, said Tatman.
Making sure alternatives work in complex products like airplanes and automobiles is exponentially harder, said Tatman, who counseled trade associations including the National Electrical Manufacturers Association and Alliance of Automobile Manufacturers before joining Wiley Rein.
Pollutant Inventory
In addition to the product-oriented regulatory plan, ECCC will require Canadian companies starting this year to report releases, disposal, and transfers of 1 kg or more of 163 PFAS present in concentrations of 0.1% or more to the National Pollutant Release Inventory.
Canadian companies already were required to provide use information for some PFAS, and Barnes & Thornburg has been advising US exporters provided details when asked, said Jennifer Baker, a partner and environmental attorney with the firm.
But US companies didn’t always have the requested data and it wasn’t required, she said. The government’s actions will increase pressure on US companies to provide requested information to their Canadian counterparts, Baker said.