Key Takeaways
Minnesota’s effort to define “currently unavoidable use” reflects a growing trend among states and international regulators recognizing the functional necessity of PFAS in certain products while also attempting to impose restrictions on their use.
Laws regulating the manufacture and sale of products containing per- and polyfluoroalkyl substances (“PFAS”) continue to be a focus among state legislatures. In 2023, Minnesota passed Minn. Stat. § 116.943 to ban all non-essential use of PFAS. The Minnesota Pollution Control Agency (“MPCA”) recently suggested criteria for what constitutes a “currently unavoidable use” of PFAS. The statute defines the exception for “currently unavoidable use” as “a use of PFAS” that is “essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.”
Minnesota’s law will roll out in three phases. Phase 1 began on January 1, 2025, banning the sale of products containing intentionally added PFAS across eleven categories, such as carpets, cookware, and cosmetics. Phase 2 imposes reporting requirements. Starting on September 15, 2026 and continuing each February 1 thereafter, manufacturers must report products with intentionally added PFAS and include the purpose and amount of PFAS used. Phase 3, scheduled for 2032, imposes a ban on the sale of any product containing intentionally added PFAS unless the product constitutes a “currently unavoidable use” of PFAS.
In recent proposals, MPCA has provided additional detail on “unavoidable use.” For example, the phrase “essential for health, safety, or the functioning of society” refers to whether eliminating PFAS from the product would cause the product to become unavailable on the market and result in increased negative health outcomes, inability to mitigate health or environmental risks, or a “significant disruption of commercial, public, or ecosystem services on which society relies.” The manufacturer would have the burden to describe how its product meets the proposed criteria. To the extent that the manufacturer claims that safety or other standards require the use of PFAS in the product, the manufacturer must show why PFAS is necessary.
Minnesota’s legislation reflects a broader trend of PFAS regulation for the manufacture and sale of products with PFAS. Numerous states have enacted or introduced similar legislation, such as California, Colorado, and Washington. With this expanding patchwork of regulations across the country, companies that manufacture or sell products that contain PFAS will need to consider varying laws.
Adding another layer of complexity for global businesses are PFAS regulations under the European Union’s REACH framework. Similar to the regulations in Minnesota, the European Union is also considering “continued use under strict conditions” as well as time-limited exceptions. These conditions underwent a consultation period open to all interested parties, that closed on May 25, 2026. Following the public comment period on the draft opinion, the Socio-Economic Analysis Committee (“SEAC”) is expected to issue its final opinion by the end of 2026. As these PFAS regulations continue to be considered and take effect, manufacturers must stay apprised of evolving limitations and reporting requirements of their products domestically and abroad.
