In late June 2024, Rhode Island joined the growing list of states that have enacted phased bans on the manufacture, sale, and distribution of various types of products containing PFAS. Rhode Island’s statute, entitled the Consumer PFAS Ban Act of 2024, applies to the manufacture and sale of new products within certain product categories, and states up front the legislature’s intent: to ban uses of PFAS – broadly defined in the statute to include “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom” – in covered products by January 1, 2029, unless the use of PFAS in the covered product is considered unavoidable.
To this end, effective January 1, 2027, the statute prohibits the manufacture, sale, or offers for sale or distribution in the state of Rhode Island of covered products containing intentionally added PFAS. “Intentionally added PFAS” is defined as “PFAS added to a covered product or one of its product components to provide a specific characteristic, appearance or quality or to perform a specific function,” and also includes “any degradation byproducts of PFAS or PFAS that are intentional breakdown products of an added chemical”; furthermore, use of PFAS “as a processing agent, mold release agent or intermediate” is considered an intentional addition for the purposes of the statute, where PFAS is detected in the final covered product.
The covered products subject to the full scope of Rhode Island’s statutory restrictions beginning January 1, 2027 will include carpets, rugs, textiles, fabric treatments, juvenile products, menstrual products, cosmetics, cookware, and ski wax. Effective January 1, 2029, the law’s prohibitions will also apply to artificial turf and severe wet weather apparel, unless, in the latter case, the severe wet weather apparel products bear a prominent disclosure that they are “Made with PFAS chemicals.” Manufacturers and sellers of firefighting personal protective equipment (PPE) must provide written notice to purchasers if the PPE contains PFAS.
In addition, the statute bans the manufacture and sale of Class B firefighting foams (defined as “foams designed for flammable liquid fires”) containing intentionally added PFAS, effective January 1, 2025, and further prohibits any discharge of the banned foams after January 1, 2025 by any person, local government, or state agency, even for training purposes. The act provides a potential safe harbor to terminal operators, who may apply to Rhode Island’s Department of Environmental Management (RIDEM) for a temporary exemption for no more than one year where there is not a commercially available alternative that does not contain intentionally added PFAS, and other showings are made. In addition, the act includes an exception to its foam ban provisions where the inclusion of PFAS chemicals is required by federal law (which likely exempts most military sites and airports from the ban’s scope). However, even where such an exception applies to the manufacture, sale, or distribution of Class B foam containing intentionally added PFAS, anyone who uses such foams must report such use to the state fire marshal and must control the discharge so as not to allow releases directly to the environment. If a release does reach the environment, the act requires notification be made to the state fire marshal within five business days and documentation of measures taken.
Violators of the new statute, once its prohibitions go into effect, will be subject to civil penalties up to $1,000 for a first violation and up to $5,000 for subsequent violations.
As enacted, the Rhode Island statute does not define an unavoidable use, nor provide a framework for RIDEM to make determinations concerning claims that a use is unavoidable. We expect to see RIDEM promulgate regulations to address the unavoidable use definition and its process for determinations, and we will provide an update when such regulations are proposed.
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