The Minnesota Pollution Control Agency (MPCA) is seeking comment on a first-of-its-kind proposed rule that will require manufacturers of products containing intentionally added per- and polyfluoroalkyl substances (PFAS) to submit a report to the Agency by January 1, 2026. The proposed rule specifies the parties responsible for reporting; information that must be reported; due diligence requirements; procedures for updating reports; processes for waiver, extension, and trade secret data requests; reporting exemptions; and reporting fees. Written comments on the proposed rule are due May 21, 2025.
Background
As explained in our previous alert, in 2023, Minnesota enacted a sweeping PFAS in products law (Minn. St. § 116.943) that (1) requires manufacturers of all products containing intentionally added PFAS to submit a report to the MPCA by January 1, 2026; (2) restricted intentionally added PFAS in certain categories of consumer products starting January 1, 2025; and (3) restricts intentionally added PFAS in all products starting January 1, 2032 unless the MPCA determines that a product represents a currently unavoidable use of PFAS (CUU). The current proposed rule would implement the reporting provisions of this law.
Definitions
The proposed rule clarifies several definitions listed in the statute and provides new definitions to some undefined terms in the law. For instance:
- The law defines “product” to include a product’s components. The proposed rule would define “component” as “a distinct and identifiable element or constituent of a product. Component includes packaging only when the packaging is inseparable or integral to the final product’s containment, dispensing, or preservation.”
- In addition to the requirement to submit the original report by January 1, 2026, the law requires manufacturers to update reports whenever there is a significant change in the information previously submitted. The proposed rule would define “significant change” to mean “a change in the composition of a product that results in the addition of a specific PFAS not previously reported in a product or component or a measurable change in the amount of a specific PFAS from the initial amount reported that would move the product into a different concentration range listed [in the rule].”
Parties Responsible for Reporting
Under the statute, reports must be submitted by manufacturers of products containing intentionally added PFAS that are sold, offered for sale, or distributed in Minnesota. The proposed rule would clarify that “All manufacturers must assume responsibility to report unless manufacturers in the same supply chain enter into an agreement to establish their respective reporting responsibilities,” and certain procedures to confirm this agreement are followed. As explained in the MPCA’s Statement of Need and Reasonableness released alongside the proposed rule, this process will allow one entity to report for the entire supply chain, but each entity within the supply chain will need to produce documentation that demonstrates that another manufacturer is reporting on their behalf.”
Information That Must Be Reported
The proposed rule specifies that the following information must be reported:
- A product description that includes (1) a brief description of the product or grouping of similar products, and (2) one of four types of numeric codes assigned to the product (e.g., brick or universal product codes, stock keeping units, numeric code used on labels, “none” if there is no such code);
- PFAS used in the product or its components as identified by (1) the chemical name; (2) CAS Number (or, if no CAS Number exists, another chemical identifying number); and (3) the PFAS concentration at the homogenous material level under the pre-set concentrations listed in the proposed rule (or by total organic fluorine, if the amount of the PFAS is not known);
- The function that each PFAS provides to the product or its components; and
- Manufacturer identifying information, including identification of authorized representatives submitting the report.
Due Diligence Requirements
The proposed rule contains a due diligence section specifying that “A manufacturer or group of manufacturers must request detailed disclosure of [reportable information] from their supply chain until all required information is known.” This due diligence requirement applies unless notification from another manufacturer is received pursuant to the agreement described in the “Parties Responsible for Reporting” section of the proposed rule as described above.
Relatedly, the proposed rule would require manufacturers to maintain documentation of “all communication with other manufacturers, including emails, letters, and responses regarding PFAS reporting compliance and reporting responsibility agreements” for at least five years after products containing intentionally added PFAS are removed from the supply chain.
Updating Reports
Manufacturers would be required to take action each February 1 (beginning February 1, 2027) if they continue selling products that contain intentionally added PFAS in Minnesota. The proposed rule would require an update to a report to be submitted by February 1 if, during the previous 12 months, (1) a significant change was made to a product; (2) new information was provided to a manufacturer; or (3) a new product was sold, offered for sale, or distributed in or into the state. Further, if no update is required, manufacturers would need to submit an annual recertification for their report by February 1. Voluntary updates to reports would also be permitted.
Waiver, Extension, and Trade Secret Data Requests
The proposed rule would establish a process for manufacturers to request the MPCA to waive all or part of the reporting requirements if the Agency determines that substantially equivalent information is publicly available. This waiver request would need to be submitted at least 30 days before the reporting due date.
Moreover, the proposed rule would permit manufacturers and groups of manufacturers to request extensions to the reporting deadline if more time is needed to comply with the reporting requirements. The request must be submitted at least 30 days before the reporting due date and include documentation justifying the extension. If the MPCA grants this extension, the reporting due date for the manufacturer would be extended by 90 days.
Additional procedures would be in place for companies to request that certain reportable information be protected from public disclosure as trade secrets. The reportable information that would be eligible for trade secret protection includes chemical name, chemical identifying number, and information requested by manufacturers from their supply chain.
Reporting Exemptions
The law contains exemptions to all of its requirements for (1) products for which federal law governs the presence of PFAS in the product in a manner that preempts state authority; (2) certain firefighting foams and food packaging restricted under other Minnesota laws; and (3) the sale and resale of used products. The proposed rule would add that the reporting requirements are not applicable to certain pesticides or to information provided to federal agencies that is classified under federal law.
Reporting Fees
A reporting fee of $1,000 would be imposed on manufacturers for submission of the initial report. Additional fees include a $500 flat fee for the annual update or annual recertification, and $300 for an extension request. In the case where a group of manufacturers submits a report or extension request, each individual manufacturer would need to pay the required fee. The initial report and extension request fees would be adjusted biennially for inflation.
Commentary
Currently, three U.S. states – Maine, Minnesota, and New Mexico – have enacted laws imposing restrictions and reporting requirements on all products containing intentionally added PFAS. Maine’s law was amended last year in part to narrow the reporting requirement to only apply to products covered by CUU determinations and to delay the reporting deadline to 2032. While New Mexico’s law is similar to Minnesota’s in that all products containing intentionally added PFAS must be reported, New Mexico’s law was enacted very recently on April 8, 2025, and the reporting deadline is not until January 1, 2027. Therefore, Minnesota’s reporting requirements – applicable to all products containing intentionally added PFAS with a due date of January 1, 2026 – is the first of its kind with a reporting deadline that is fast approaching.
Given the broad scope of Minnesota’s PFAS reporting requirements, many industries will likely be affected by this rulemaking. Compliance costs are expected to be very high, especially given the MPCA’s expectation that companies will actively engage with their supply chains during due diligence and since the reporting deadline is approximately 8 months away. All affected stakeholders are therefore encouraged to comment.
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