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The European Commission has said it intends to distinguish between consumer and industrial uses in its upcoming PFAS restriction proposal. But without a clear definition of what constitutes consumer use, experts have been left to speculate where the boundary may be drawn.
Commission officials have suggested that consumer uses could be addressed first in the upcoming proposal, allowing continued use of PFAS in critical industrial applications where alternatives are unavailable. However, if this approach should become part of the final proposal, the question remains: what would the criteria underpinning it be?
The choice of criteria could dramatically alter the scope of the restriction, determining whether thousands of PFAS-containing products fall within an initial phase or are left for later action.
No legal definition of consumer use exists within EU chemicals legislation. But the term is generally understood to refer to products sold to, or intended for use by, the public rather than professional or industrial users. This is consistent with ECHA guidance on chemical safety assessment, which describes consumer uses as "all end-uses of the substance as such or in a mixture carried out by consumers" and which are widespread.
These include products such as cosmetics, cookware, food-contact materials and clothing. Yet many PFAS-containing applications do not fit neatly into consumer, professional or industrial categories.
Consumers buy mobile phones, electronics, household appliances, cars, heat pumps and medical devices that contain PFAS components to which they are not directly exposed, raising questions over whether such applications should be considered consumer uses simply because consumers buy the final product.
The idea of splitting consumer and industrial uses into separate measures has proved contentious in the EU. The five countries that submitted the restriction proposal have opposed such a move, and ECHA’s scientific committees have not endorsed the split in their opinions.
The same sealant and technical application [in an engine] would fall under three different use categories, with potentially very significant consequences if, for example, the longer transition period were limited to industrial use only
Cindy Vandecasteele, senior environmental policy officer, European Automobile Manufacturers’ Association
Nevertheless, comments from commissioners Jessika Roswall and Stéphane Séjourné suggest that the executive is considering an initial focus on consumer uses, mirroring measures already adopted by some member states. Powerful industry groups, including Germany's VCI, have welcomed the idea.
NGOs and several scientists, however, say that only a universal restriction covering all uses can effectively address PFAS risks. Consumer products, which contain the substances, have already largely disappeared from mainstream retail, they say, while industrial applications account for the vast majority of PFAS emissions.
Grey areas
Finding a workable definition of ‘consumer use’ will be challenging, according to Cindy Vandecasteele, senior environmental policy officer at the European Automobile Manufacturers’ Association (ACEA), which is still assessing what such a definition might look like in practice.
She points to the example of a sealant used in an engine. The same product may be applied during vehicle manufacturing at an industrial site, by a professional mechanic during a repair, or by a consumer carrying out DIY maintenance.
"The same sealant and technical application would fall under three different use categories, with potentially very significant consequences if, for example, the longer transition period were limited to industrial use only," Vandecasteele says.
"Yet the distinction would not necessarily correspond to a difference in exposure or risk, as the sealant is incorporated into the engine and does not result in meaningful exposure during use."
Peter Sellar, a partner at law firm Squire Patton Boggs, says the Commission may have underestimated the complexity of the PFAS restriction. While splitting the proposal could help advance the process, he warns that creating a definition of ‘consumer use’ could prove problematic and create legal uncertainty.
Why does a specific definition not already exist under REACH? To me, that's an amber flag. If it hasn't been necessary to define consumer use so far, why are we trying to do it now, for the purposes of a single restriction?
Peter Sellar, partner, Squire Patton Boggs
The Commission could take a number of approaches. It could follow existing precedents and target specific consumer uses, as some member states have done, or rely on sector-specific legislation. A broader restriction on all consumer uses, subject to derogations, would require regulators to devise bespoke definitions for all three categories, according to Sellar.
This could be only for the PFAS restriction, unless the Commission is thinking of a real shift in REACH focus, Sellar says.
"Why does a specific definition not already exist under REACH? To me, that's an amber flag. If it hasn't been necessary to define consumer use so far, why are we trying to do it now, for the purposes of a single restriction?" he asks.
"I would hesitate to open a new can of worms now."
Diffusive uses
Some industry stakeholders are seeking to frame the debate around ‘diffusive’ uses, meaning applications that result in widespread environmental releases.
The Fluoropolymers Product Group (FPG), part of Plastics Europe, says that regulation should focus on emissions rather than materials, adding that releases "can be and are being addressed through robust emissions controls" – a claim disputed by NGO ChemSec.
FPG has repeatedly pressed for a full exemption for fluoropolymers, warning throughout the restriction process that a consumer-use approach could unintentionally capture fluoropolymer applications embedded in products and components where they are essential for safety, reliability and performance.
"Anything short of a full exemption for fluoropolymers would be disproportionate and create uncertainty for the European industries that depend on these advanced materials," FPG says.
But according to PFAS expert Ian Cousins from Stockholm University, using diffusiveness as a regulatory criterion would significantly narrow the scope of the restriction. Many consumer applications typically classified as diffusive already have PFAS-free alternatives, he says, meaning such an approach could amount to little more than "regulatory window-dressing".
Cousins says in this scenario, applications such as machinery seals and gaskets, cable insulation, battery and fuel-cell membranes, and components used in electronics and medical devices would be left out. Although these uses are not generally considered diffusive during operation, they can generate significant PFAS emissions throughout their lifecycle, particularly during production and disposal.
Anything short of a full exemption for fluoropolymers would be disproportionate and create uncertainty for the European industries that depend on these advanced material
Fluoropolymers Product Group
SME adviser Marko Sušnik makes a similar point, saying that diffusiveness is not a defining characteristic of consumer use but rather a potential consequence of it.
Cousins opposes splitting the restriction between consumer and industrial uses. But if policymakers pursue that route, he argues that consumer uses should be defined as products sold to or used by the public, including textiles, cosmetics, cookware, electronics, vehicles and household appliances. Industrial uses should be limited to applications in controlled workplace settings.
Diffusiveness could then be considered when prioritising derogations or determining transition timelines, he adds.
Risk-based approach
Michael Lulei, VCI’s head of product safety and chemicals policy, says neither a simple consumer-industrial split nor a diffusive-non-diffusive distinction adequately reflects the diversity of PFAS uses.
Instead, any regulatory approach should remain risk-based and take account of factors such as proportionality, practical implementation, the availability of alternatives, use conditions and potential emissions from individual applications, he adds.
Despite ChemSec's longstanding view that all PFAS uses should be targeted, Jonatan Kleimark, its director of programmes, has acknowledged that time-limited derogations may be justified for certain applications where alternatives are not yet available, including mobile phones, cables and wiring, and microchip coatings.
Conclusion
While stakeholders hold sharply different views on the issue, it remains unclear whether the Commission will ultimately pursue a consumer-use definition. The debate comes as the Commission intensifies efforts to simplify EU chemicals legislation and reduce regulatory burdens in the name of competitiveness, creating little appetite for introducing new layers of regulatory complexity.
The EU frequently draws on OECD terminology and technical guidance. But while the organisation has developed the internationally recognised definition of PFAS, it has not established a corresponding definition of consumer use.
The bloc's protracted debate over the "essential use" concept offers a cautionary precedent. First proposed under the Chemicals Strategy for Sustainability (CSS), the concept has consumed years of political and technical discussion, with policymakers still grappling with how to translate it into clear, workable criteria. Defining consumer use for the purposes of a PFAS restriction could prove similarly contentious.