PFAS ban – will the universal restriction see the light of day?

The EU’s proposed PFAS ban

Since five EU Member States submitted a proposal to restrict the use of per- and polyfluoroalkyl substances (PFAS) last year, business leaders and policymakers have increasingly raised concerns that a universal ban will have far-reaching consequences for European industry and the transition to a cleaner economy. With work in the European Chemicals Agency (ECHA) progressing slowly and the European Commission president calling for clarity on the so-called “forever chemicals”, we take a look at where the PFAS proposal currently stands. 

What’s happened so far? 

In February 2023, ECHA published a proposal to generally restrict the use of PFAS covering approximately 10,000 substances in the EU. The restriction, one of the broadest in the EU’s history, was submitted following a lengthy consultation process by five countries: Germany, the Netherlands, Sweden, Denmark and Norway. The justification for such a restriction: PFAS are persistent substances, leading to long-lasting environmental exposure and accumulation. ECHA says: 

“Due to their water solubility and mobility, contamination of surface, ground- and drinking water and soil has occurred in the EU as well as globally and will continue. It has been proven very difficult and extremely costly to remove PFASs when released to the environment. In addition, some PFASs have been documented as toxic and/or bioaccumulative substances, both with respect to human health as well as the environment. (…)” 

A public consultation on the proposal was held between March and September 2023, generating more than 5,600 comments. Many were from fluoropolymers companies concerned about how a ban could impact their sector. ECHA is still reviewing all the comments – far more than it expected to receive. 

There is already legislation in place targeting specific sub-categories of PFAS and specific uses: The EU’s water quality directive, updated in 2020, sets a threshold limit for PFAS concentrations in water as of 12 January 2026. In addition, ECHA already presented a proposal to restrict PFAS substances in fire-fighting foams last year. This month, the Commission adopted a restriction on perfluorohexanoic acid (PFHxA), banning the sale and use of the chemical in consumer textiles and food packaging. Companies using PFHxA in these sectors have between 18 months and five years to phase out the chemicals, depending on the application. 

What’s next? 

The two ECHA committees – the Committees for Risk Assessment (RAC) and for Socio-Economic Analysis (SEAC) – continue to assess the restriction proposal, focusing on assessing the impact the ban would have on different product categories. The most recent meetings took place 17-18 September 2024, where both committees reached provisional conclusions on the use of PFAS in sectors such as petroleum and mining. More meetings are scheduled for November 2024, where the use of PFAS in sectors like food contact materials and construction products will be discussed.

ECHA’s committees are not expected to finalise their opinions until next year at the earliest. ECHA’s conclusions would then need to be sent to the Commission, which could take a few years to analyse and adopt a final decision at EU level, raising questions whether a restriction would be in force by the end of the 2020s. There has been talk that the Commission could focus on dealing with “low-hanging fruits” first rather than to work on a comprehensive ban, e.g. PFAS uses where alternatives exist and for which few concerns were raised during the consultation. This would leave the more challenging uses, e.g., PFAS used in electronics/semiconductors or transport, to be reviewed at a later stage, but this approach is not confirmed for now. 

Meanwhile, following the unveiling of her proposed new College of Commissioners, Commission President Ursula von der Leyen has asked the candidates for Executive Vice President for Prosperity and Industrial Strategy and Commissioner for Environment to both work on providing clarity on PFAS, to take into consideration both sustainability and competitiveness. More on the new College of Commissioners can be found on the Freshfields 2024 election supercycle website. 

The cautionary approach taken by the Commission echoes the sentiment made by many business leaders and politicians in recent months. The German Federal Institute for Occupational Safety (BAuA), for example, released a statement in April this year clarifying its position amidst national criticism of the original proposal. BAuA underlined that the five countries are revising their initial evaluation to assess the information submitted on PFAS alternatives and to consider whether restriction options other than a ban are appropriate to address the risks identified in the context of PFAS. 

What you should be thinking about now

Restricting the use of PFAS is one of the key priorities under the European Chemicals Strategy for Sustainability. We therefore expect a PFAS ban to come into effect in the foreseeable future, albeit one that is not as broad as initially anticipated. Anyone currently relying on PFAS in their value chain should closely follow developments around the proposed PFAS ban in the EU. Companies should assess the relevance of PFAS for their products and services, consider alternatives and prepare for the phase-out of PFAS in the foreseeable future.