The European Parliament this month played host to an unusually media-enticing event as US movie star Mark Ruffalo took the stage to discuss the highly debated case of PFAS – the focus of his recent film ‘Dark Waters’.

Morgane Horn
Consultant

PFAS, however, are not a new topic. The chemical family has come under heavy regulatory scrutiny these past months, exemplified by the call by several EU countries in December 2019 for an EU PFAS strategy, to bundle all PFAS together in one group and ban uses which are not essential. The Netherlands is also currently working on a comprehensive proposal for a restriction of all non-essential uses of PFAS and all products containing them. So, what are PFAS, and why are they attracting so much attention?

PFAS in a nutshell

Per- and polyfluorinated substances (PFAS), are a group of man-made chemicals manufactured and used in a wide variety of industries due to their high performance – including in construction, transport, electronics, medical applications and renewable energy. Their properties increase safety and enable the reduction of emissions in automotive and aerospace industries, boost the production efficiency of photovoltaics and wind energy, and allow for the functioning of surgically-implantable medical devices, to name a few. With this high performance comes persistence, sometimes coupled with toxicity, mobility, and/or bioaccumulation. Perfluorooctanoic acid (PFOA) and Perfluorooctane Sulfonate (PFOS) have been the most extensively studied and regulated of these chemicals. However, some 6,000 PFAS are said to exist, for many of which we lack information on uses or hazards. As a result, policymakers are looking at ways to regulate this class of chemicals.

From grouping…

One of the main measures being considered to regulate PFAS is grouping, i.e. putting all PFAS substances in one bucket and applying the same rules across the whole class, without distinguishing among the substances. It is not the first time that EU regulators group chemicals based on similar physicochemical and human health and/or ecotoxicological properties and/or environmental fate properties. Annex XI of the REACH Regulation provides for the grouping and read-across approach as a tool to manage risks and avoid regrettable substitutions. Over the years, the European Chemicals Agency (ECHA) has gained experience in the grouping of chemicals (e.g. phthalates, microplastics, lead stabilisers, cobalt salts).

However, PFAS may not be so easy to group given the wide diversity of substances, many of which have very different properties from each other. United by strong carbon-fluorine bonds, conferring stability and inertness, the persistence, bioaccumulative and toxic properties of long chain monomers like PFOA and PFOS are simply not witnessed in fluoropolymers, which meet the OECD definition of polymers of low concern.

… To essential use

What is undoubtedly new with this proposal, however, is the concept of essential use. Unlike grouping, essential use has no currently established European legal basis. The Montreal Protocol provides some precedent, but it remains to be defined on what ground regulators will attempt to establish such a concept under EU chemicals regulation. Given its subjectivity, the concept also raises a number of issues including legal certainty, proportionality, not to mention potential technical barriers to trade – i.e. can the EU decide what is ‘essential’ to the rest of the world?

Politics, emotions (and a little glamour) at the core of EU policymaking

Despite having one of the most comprehensive chemicals legislation frameworks in the world, the EU still regularly comes under fire for not adequately protecting human health or the environment from adverse effects caused by hazardous chemicals. People grow increasingly concerned about substances surrounding them, from what they drink, to what they eat, what they wear, what they breathe… With this growing concern comes pressure on regulators to act, and to act fast. This is perhaps their biggest challenge – to adapt to fast-changing technology and innovation.

Relaying the real-life story of Robert Bilott, a corporate attorney who uncovered a PFOA pollution of West Virginia’s drinking water, Dark Waters is the perfect example of how emotions are currently driving the EU political and ultimately chemicals regulatory agenda. During Mark Ruffalo’s visit to the European Parliament, panellists showed their appetite for pulling emotions into an until now highly technical regulatory discussion, labelling Dark Waters as “a griping drama, just what we need now” and even claiming that the EU needs “more heroes” like Mark Ruffalo and Robert Bilott. If Erin Brockovich had a similar plot – whistleblowing around poisoning of groundwater in Hinkley, California – it did not quite make the same waves in EU regulation. That was 2000, and we didn’t have the European Green Deal then. Sustainability was not at the heart of policymaking.

What is certain is that the PFAS debate is setting a precedent in EU chemicals regulation. The grouping combined with essential use approach could have a bearing on the future of REACH. It could shape how polymers are regulated, and if essential use criteria are formally adopted, these would certainly be applied to other groups of chemicals. As challenge and uncertainty settle on the chemical industry, one thing is for sure – the world of chemicals has never been such a rollercoaster.

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