Bills to regulate toxic ‘forever chemicals’ died in Congress - with Republican help

All legislation aimed at regulating toxic PFAS "forever chemicals" died in the Democratic-controlled US Congress last session as companies flexed their lobbying muscle and bills did not gain enough Republican support to overcome a Senate filibuster.

The failure comes after public health advocates and Democratic lawmakers expressed optimism at the legislative session's outset that bills that would protect the public from dangerous exposure to the chemicals could gain sufficient bipartisan support.

Among proposals that failed were bans on PFAS in food packaging, textiles and cosmetics, and measures that would have set stricter cleanup standards.

"[The chemicals] industry is basically battening down the hatches, digging their trenches for defense, and shooting their salvos to stop anything that would significantly control PFAS," said Erik Olson, the senior strategic director for the Natural Resources Defense Council, an environmental advocacy group.

PFAS are a class of about 12,000 compounds used to make products resist water, stains and heat. They are known as "forever chemicals" because they do not naturally break down, and they have been linked to cancer, high cholesterol, liver disease, kidney disease, fetal complications and other serious health problems.

The Environmental Protection Agency this year found that virtually no level of exposure to two types of PFAS compounds in drinking water is safe, and public health advocates say the entire chemical class is toxic and dangerous. Because of their health risks, no chemical in recent years has drawn as much regulatory and legislative attention at the state and federal level. But the chemical industry records billions of dollars in PFAS sales annually, and has deployed lobbyists to protect its revenues.

Of more than 50 bills that focused on PFAS introduced by Congress last session, only two minor proposals that in effect provide subsidies to industry became law, and only three made it out of committee. Several provisions included in the National Defense Authorization Act that order the military to take steps to clean up widespread PFAS contamination on its bases also became law.

The failure of the PFAS Action Act amid heavy lobbying is emblematic of the difficulty in passing meaningful legislation. The bill was perhaps the most feared by the industry because it would have imposed tighter air and water pollution limits on PFAS while making the chemicals' producers and users financially responsible for cleanup. Industry "pulled out the stops to kill it", Olson said.

The bill passed the House with bipartisan support in 2021, but stalled in the Senate's environment and public works committee. The Republican senator Shelley Moore Capito, the committee's ranking GOP member, had in 2019 introduced a bill that included many of the same provisions.

"I'm proud to lead this bipartisan legislation," Capito said at the time, adding that it would allow the EPA to hold PFAS polluters accountable.

However, she did not support the legislation this session.

"We've heard from local stakeholders and studied the real-life impacts of this complex issue, which is why, as we continue to work to address PFAS contamination across the country, the uncertainty and unintended consequences of any policy proposal must be taken into account," Capito said.

At least 43 companies or industry organizations lobbied on the PFAS Action Act, federal records show. Lobbying records that include the bill submitted by the American Chemistry Council trade group, which represents chemical makers, total about $17m, though the portion of that which was spent on the act is not publicly available.

Meanwhile, Capito has received about $180,000 from the chemical industry since 2017, and represents a state with a DuPont factory that is responsible for extensive PFAS contamination. DuPont lobbying records from the last session that include the PFAS Action Act total about $2.5m, though it is not clear what portion of that was spent on the bill.

The EPA this year used its authority to administratively enact pieces of the PFAS Action Act, but the proposed bill went further than what the agency implemented, and the rules could be dismantled by a Republican administration.

Other bills were less intensively lobbied by industry because they had little chance of gaining enough Republican Senate support, despite taking what public health advocates say are very basic steps to protect the public from dangerous exposures to the chemicals.

Among those were the No PFAS in Cosmetics Act and Keep Food Packaging Safe From PFAS Act. Both were introduced in the House by Congresswoman Debbie Dingell. The food package bill did not make it through committee but Dingell attempted to include the provisions in the government funding bill.

It was ultimately cut from the final spending bill. A spokesperson told the Guardian Dingell was "disappointed" the legislation was not included, but said she planned to reintroduce it next session. With the Republicans in control of the House, it is unlikely to move.

Though the cosmetics legislation met a similar fate, Dingell noted that a provision in the spending bill directs the Department of Health and Human Services to analyze whether PFAS can be used safely in cosmetics.

The failures come as a growing number of states, including California and New York, have banned the use of PFAS in cosmetics, textiles and food packaging. Meanwhile, a new Maine ban on all PFAS in products except those that qualify as "unavoidable" uses goes into effect in 2030.

The lack of Republican support for basic measures at the federal level can be explained by industry's philosophy that giving public health advocates an inch on PFAS restrictions will lead to them taking a mile, Olson said.

"There is concern from industry folks that any admission that there's a problem with PFAS could come back to haunt them - why is it OK in one thing but bad in another?" Olson said.