The regulators of substances colloquially known as ‘forever chemicals’ are set to further restrict certain types of per- or polyfluoroalkyl substances, or “PFAS”, in the UK as the Health & Safety Executive (“HSE”) and the Environment Agency (“EA”) turn their focus to the pervasive chemicals in 2024.

PFAS are a large class of thousands of synthetic chemicals that are widely used throughout society and found in the environment. They all contain carbon-fluorine bonds, which are one of the strongest chemical bonds in organic chemistry. They are resistant to grease, oil, water, and heat and so they have found a large range of uses for example in water-resistant fabrics, firefighting foams, and food packaging. However, PFAS has, in recent years, become a cause for alarm from an environmental perspective, with the substances being detected in air, soil, drinking water and even human blood samples. This has led to growing concern about both widespread environmental contamination and human health risks from PFAS exposure, as well as calls for tighter regulation to control and mitigate the harmful health and environmental impacts of PFAS across a range of exposure routes.

In February this year, the UK Government announced that it will look at starting to develop a restriction proposal on PFAS in firefighting foams during 2023 under the main chemical regulatory regime in the UK, known as UK REACH. That announcement was shortly following by the publication of the UK REACH Work Programme for 2023-24, which outlined the recommendations being taken forward under the HSE’s April 2023 regulatory management option analysis (“RMOA”). The recommendations included limiting the use of PFAS-containing firefighting foams and PFAS in consumer articles such as textiles, furniture and cleaning products. Firefighting foams were prioritised specifically in the RMOA for action in 2023 due to the evidence of occupational exposure and environmental harm, and fire-fighting foam containing PFOAs has been banned if the foam cannot be contained or collected after a fire, although exemptions are in place until July 2025 for certain uses.

The Work Programme for 2023-24 also lists a number of PFAS substances added to the EU candidate List (the EU’s list of ‘substances of very high concern’ – substances which may go on to be banned from use after a certain date) from 2022 to be initially assessed within the programme’s period. Prior to Brexit, chemicals in the UK were regulated under EU law, with the UK largely retaining that law after the Brexit transition period. The two UK REACH restrictions of PFAS currently in force in England were in effect ‘copied and pasted’ from EU REACH, meaning that the UK had not independently restricted those substances.

Concurrently with the Work Programme for 2023-24, the UK Government published its rationale for prioritising the substances within the programme on 15 February 2024. The forthcoming restriction proposal on PFAS in firefighting foams, as well as the assessment of potential additional restrictions on further wide dispersive uses of PFAS and PFAS likely to be released from consumer articles were both acknowledged, with the UK Government anticipating that “much of HSE’s capacity to develop restrictions over the next five years will be devoted to PFAS”. This statement is indicative of the trajectory of travel for the regulation of PFAS in the coming years, although there have been criticisms over undue delay to progress. The Work Programme for 2023-24 was published 11 months later than the date the programme was due to commence, and looking across the Channel, it is evident that the EU has much more ambitious goals for controlling PFAS; proposals to ban over 10,000 PFAS within the EU’s jurisdiction are currently being scrutinised by scientific committees within the European Chemicals Agency. However, whilst the regulation of PFAS in the UK may be behind other countries, it is highly anticipated that PFAS are likely to be subject to further restriction and control in the UK in future.  

We are increasingly receiving requests from clients to advise on the regulation of PFAS.  This is a rapidly developing area which could have a significant impact on a number of industries, not least as the regulators start to take it much more seriously.

If you have any questions in relation to PFAS, please get in contact with Michael Barlow on michael.barlow@burges-salmon.com or your existing contact in our environment team.

Written by Philippa Shepherd.