Last December, for a second time over two legislative sessions, stiff GOP and industry opposition in the US Senate thwarted a bill from Michigan Congresswoman Debbie Dingell that would have prohibited the use of toxic PFAS chemicals in food packaging, even after the bill won bi-partisan approval in the US House.
But a different story was playing out across the country.. During 2021 and 2022, similar measures passed by New York, California, and Washington made it financially and logistically infeasible for food companies to continue using PFAS to water and grease-proof packaging. In the bills’ wakes, major brands like McDonald’s, Whole Foods, and Starbucks have begun eliminating PFAS.
A similar proposal was finally introduced in the Michigan Legislature by Sen. Jeff Irwin (D-Ann Arbor) on May 4, and he and state political observers say it could pass. If it does, the legislation would be part of a growing crop of bold new laws largely in Democratically controlled states restricting the chemicals’ use in consumer goods and forcing industry to move away from PFAS.
With Democrats in control of Michigan’s government for the first time in 40 years, legislators and public health advocates see an opportunity to pass legislation like Irwin’s and other laws to help the state handle the PFAS crisis and reduce residents’ exposure.
“It definitely has a better chance of passing than ever before,” Irwin said. “Having Democrats in control of the legislature increases the likelihood that we pass some laws that hold industry accountable and restrict some commercial uses.”
The laws percolating in Michigan would target the chemicals’ use in consumer goods, strengthen the regulatory framework to better legally position the Michigan Department of Environment Great Lakes and Energy (EGLE) to address contamination, hold polluters accountable, or make cleanup easier to finance.
PFAS, or per and poly-fluoroalkyl substances, are a class of about 15,000 compounds called “forever chemicals” because they are virtually indestructible. Those studied are linked to cancer, thyroid disease, immune disorders, kidney damage and other serious health problems.
The chemicals are ubiquitous because they are frequently used to make thousands of consumer products resist water, stains and heat, and they are found at concerning levels in cosmetics, pans, dental floss, stain guards for furniture, firefighting foam, water-proof clothing, menstrual products and more.
Though there has been some bi-partisan support for PFAS measures in the state in the past, the new set of proposals goes much further in restricting the chemicals.
“There hasn’t been a political climate to do any actual restrictions in Michigan, where it has much more been ‘How do we manage the problem?’” said Sarah Doll, director of Safer States, which pushes for stricter state-level regulation around toxic chemicals. “Now there is a shift and a political openness to ‘Are there some bigger steps we can take?’”
Action around the country leads to industry pressure
Despite federal inaction, around 10 states have banned PFAS in food packaging, and California, New York, and Washington now prohibit PFAS in clothing. They and a handful of other states restrict their use in textiles like furniture upholstery, carpeting, curtains or gear for babies and kids.
California, Colorado and Maryland have banned PFAS in cosmetics and some personal care products, and at least 10 states outright prohibit the chemicals in firefighting foam used by airports, the military and fire departments. Firefighting foam is a major contributor to PFAS water pollution because it ends up in local waterways and streams after it is sprayed. Meanwhile, in 2021, Maine passed a ban on all non-essential uses of PFAS.
The momentum is continuing in 2023: so far this year, Vermont’s senate unanimously approved a bill to ban the chemicals in cosmetics, textiles and artificial turf, while the Minnesota House approved a bill that would ban it in carpets, cleaning products, cookware, cosmetics, dental floss, furniture and more.
The effect on industry is clear: Just a few of those that have announced phase-outs in all or some products as the laws come down are major retailers and companies like REI, Patagonia, Burger King, Taco Bell, Sephora, Pizza Hut, Amazon, Rite Aid, Home Depot, Lowe’s, Ralph Lauren, Zara, H&M, and Abercrombie & Fitch, and some major firefighting foam producers.
What’s being done in Michigan?
In Michigan, few restrictive measures have passed the legislature prior to this session, but the Whitmer Administration was the first to commit to only buying PFAS-free products. EGLE has set drinking water limits, required some polluters to stop spitting PFAS into the sewer system or waterways, and set up a buyback program for toxic firefighting foam, among other measures. Meanwhile, Michigan Attorney General Dana Nessel is among 17 state attorney generals suing PFAS producers and industrial polluters.
But the time to tackle PFAS in consumer products is now, advocates say. Michigan could start by “mirroring” successful bills passed elsewhere and “could amplify that signal that’s being sent to the marketplace” by other states, Doll said.
One bigger idea is a Maine-style ban on all non-essential uses proposed by the Great Lakes PFAS Action Network, a group of public health advocates led by the Ecology Center and residents from communities around the state impacted by PFAS pollution.
“We will push for that bill because it’s a chance to prove to ourselves as a state that we can make some policy strides,” said Erica Bloom, Toxics Campaign Director with the Ecology Center.
The network released a wide-ranging policy agenda earlier this year. It proposes a financial safety net for farmers whose fields are contaminated with PFAS because toxic sewage sludge was spread on them. The state allows sludge to be spread on fields as an alternative to fertilizer. Still, Michigan and other states have discovered that the substance is typically teeming with PFAS, contaminating crops, livestock, and water.
Maine has already shut down over a dozen farms. So far, Michigan has ordered one to close but has discovered the chemicals in every field it has checked. Maine banned sludge and approved a bail-out for farmers who lost their livelihoods, and Bloom said similar legislation is needed in Michigan as the state gets its arms around the sludge problem.
Beyond consumer goods, reducing PFAS in the state’s water and soil will require undoing roadblocks set by previously GOP-controlled legislatures and administrations.
A key piece already moving is a repeal of the “no stricter than federal” law that prohibits EGLE from setting stricter limits for water and air contaminants than those under federal law. Though the Environmental Protection Agency has said virtually no level of exposure to PFOA and PFOS, two of the most dangerous types of PFAS compounds, is safe in drinking water, it could take a year for the EPA to approve a proposal to lower water limits for the chemicals, and longer for the state. Eliminating the “no stricter” law would allow the state to enforce stronger protections.
Empowering EGLE, enabling remediation
It could also move quicker on setting strong limits on PFAS and other contaminants if the Part 31 law was amended to give EGLE clearer authority to set thresholds, said Christy McGillivray, legislative director with Sierra Club Michigan. Democrats are further targeting “polluter panels” made up of industry representatives who can slow down or derail environmental rules proposed by EGLE. In 2019, the panels temporarily slowed stricter limits on PFAS in drinking water proposed by EGLE.
“How can we restore our laws around polluter accountability to ensure taxpayers aren’t holding the bag when these companies pollute land, air and water, then walk away?” Irwin asked. “The sad truth is we haven’t had enough environmental cops on the beats, nor do we have the statutes to hold polluters accountable when they create a mess.”
Republicans in the state have supported funding remediation efforts in communities with contaminated water. However, that subsidizes industry, and a bill likely introduced this session would require polluters to pay for the cleanup. It’s less clear if Republican legislature members will support bans on PFAS in products like food packaging or “polluter pay” that will hit industry’s bottom lines.
“Telling a company they can’t do something is different than assigning taxpayers after the fact to clean up that company’s mess and let them off the hook,” Irwin said.
One bill that’s making progress would make clean-up easier to finance. A proposal introduced by Sen. Kristen McDonald Rivet (D-Portland) in April and passed by the Senate would amend Michigan’s Property Assessed Clean Energy financing law to include financing eligibility for “environmental hazard projects” including PFAS contamination in potable water systems, among other hazards. Currently, only energy projects are eligible. The bill would also make agricultural property eligible for PACE financing. Currently, only commercial and industrial properties are eligible.
Under PACE, local government units set up a special assessment district to facilitate the repayment of loans for projects over 25 years, obviating the need for upfront capital. The loan becomes a lien on the property and is transferred with the property title. The bill was sent to the House Energy, Communications, and Technology Committee.
Not everyone is confident there is enough support among Democrats to get some of the proposed legislation through. McGillivray said a food packaging ban has potential, but she noted there may be some Democratic opposition to proposals like polluter pay or giving EGLE clearer authority to set limits. Industry has promised fierce opposition to those proposals, and some representatives may not want to anger their large donors.
Moreover, two Democratic House members may leave office in November if they win mayoral races in their hometowns, which means Democrats may not have a majority in the House for several months during this legislative session.
Still, McGillivray is “cautiously optimistic” about the chance of Irwin’s food packaging bill, and some other measures.
“The state has a narrow window of opportunity and they should act fast,” she added. “We’ve seen bipartisan support for PFAS legislation in the past, and we should ban the sale and use of PFAS in as many consumer goods categories as possible.”