Extracted from Law360
Minnesota regulators have taken another significant step toward implementing the state's sweeping restrictions on per- and polyfluoroalkyl substances in consumer and commercial products.
The Minnesota Pollution Control Agency has circulated draft concepts and completed an initial public feedback process that will inform its upcoming rulemaking on exemptions for currently unavoidable use, or CUU, under the state's broad ban on products containing intentionally added PFAS.
While the ban takes effect in 2032, the agency has already completed an initial public feedback process that will inform the agency's upcoming rulemaking.
According to the agency, more than 1,000 people from at least 24 countries registered for its Feb. 26 webinar, with additional participants viewing on YouTube, underscoring how closely industry is watching Minnesota's approach to CUU exemptions.
For manufacturers, importers, distributors and downstream sellers, this development warrants close attention. The forthcoming rulemaking will likely determine how narrow or broad the exemption pathway will be under one of the country's most expansive state PFAS product laws.
It also may provide an early indication of how other states will approach essential use exemptions in future PFAS restrictions.
Why This Rulemaking Matters
Minnesota's law has already begun to restrict the sale of products that contain intentionally added PFAS. Beginning in January 2025, 11 categories of products with intentionally added PFAS were banned.
This will expand to a much broader prohibition in 2032, subject to CUU exemptions for products containing PFAS. As a result, the CUU rulemaking is likely to be a key mechanism for determining the statute's practical reach.
A narrow interpretation of CUU could force reformulation or loss of access to the Minnesota market for many PFAS-reliant products, while a broader interpretation may offer a viable pathway for certain products to remain in commerce.
The Central Issue: How Minnesota Will Define "Currently Unavoidable Use"
Under the statute, a CUU is a use of PFAS that the commissioner determines is "essential for health, safety, or the functioning of society" and for which alternatives are not reasonably available.
The MPCA has indicated that these statutory terms may require additional clarification through rulemaking. That definitional exercise is likely to be the central issue — and based on the draft concepts, the agency is considering a relatively demanding standard.
The proposed framework would require a demonstration that PFAS are necessary for the product or component to perform as intended, and that their absence would create serious harms.
Such harms could include significant increases in negative health outcomes, inability to mitigate significant risks to human health or the environment, or major disruption of commercial, public or ecosystem services.
This approach distinguishes between uses that are beneficial or commercially advantageous and those that are indispensable.
Demonstrating that PFAS improve durability, water resistance or heat resistance may not be sufficient on its own. The focus is on whether their absence would impair a product or service in a way that affects health, safety or core societal functioning.
Evidentiary Burden on Manufacturers
CUU applications may require substantial technical support. The MPCA is considering requiring applicants to explain how the intentionally added PFAS in their product satisfies the CUU definition.
Applicants may also be required to identify reasonably available alternatives to the product or the PFAS use, and to describe "extreme conditions of use" that necessitate PFAS for the product to perform its service.
The exemption process will be fact-specific and evidence-driven. Manufacturers may need to support applications with detailed information regarding product function, operating conditions, substitute materials, feasibility of reformulation and the consequences of removing PFAS from the product.
General assertions that alternatives are inferior, costlier or not yet widely adopted may carry limited weight unless tied to the statutory standard.
Companies should expect the agency to scrutinize whether alternatives exist, and whether those alternatives are reasonably available for the specific application at issue.
Timing Considerations and Market-Access Risk
The timing issues associated with the rulemaking may be as important as the substantive standard.
The MPCA is considering a Jan. 1, 2030, deadline for CUU requests for existing products, which would give the agency at least two years to review applications before the 2032 prohibition takes effect.
The update further indicates that if an applicant has not received a final positive determination by Jan. 1, 2032, the product would have to stop being sold in Minnesota unless and until the commissioner grants the request.
Companies with potentially strong exemption arguments may still face disruption if they do not prepare early, submit complete applications and account for the possibility of a lengthy review process.
Affected companies should assess now which products could require CUU applications, what supporting data may be needed, and whether internal product stewardship, regulatory and commercial teams are aligned on a Minnesota-specific strategy.
Public Comment and Potential Challenges
The MPCA is considering a process under which the agency would issue a draft determination, allow 30 days for public comment and then give the applicant 30 days to respond before issuing a final decision.
That approach would likely create a more transparent administrative record, but increases the prospect of adversarial scrutiny. CUU applications may need to withstand agency review as well as public challenge.
Environmental organizations, competitors, customers and other stakeholders may use the process to contest whether a given PFAS use is essential or whether alternatives are reasonably available.
Broader Significance Beyond Minnesota
Minnesota's process may have implications beyond the state. Maine has already begun implementing a similar CUU framework, and had approved only two of 11 exemption applications received from manufacturers as of October 2025.
Although Minnesota's statutory structure differs in certain respects, both states are shaping what may become a broader state regulatory model: broad PFAS product restrictions coupled with a narrow exemption pathway for uses regulators regard as genuinely indispensable.
As more jurisdictions consider PFAS product laws, Minnesota's interpretation of critical use, alternatives and application procedures may be closely watched by policymakers and stakeholders elsewhere.
Key Takeaways
Manufacturers and other affected businesses should closely monitor the Minnesota rulemaking and consider early engagement. At a minimum, companies may wish to:
- Identify products sold into Minnesota that contain intentionally added PFAS and may be affected by the 2032 ban;
- Evaluate which products may require a CUU request;
- Begin developing technical support for any future exemption application, including alternatives assessments and evidence regarding product function and operating conditions;
- Assess confidentiality and public-comment risks associated with the application process; and
- Monitor the next phase of the rulemaking, including future webinars, proposed-rule publications and any additional formal comment opportunities.
Minnesota is now moving from statutory prohibition to implementation. The agency completed an initial feedback round, but the most consequential decisions may still lie ahead as the MPCA converts those concepts into proposed rules and, eventually, individual exemption determinations.
In implementing a ban, the state is setting the terms for how companies must prove necessity.
If that standard comes out strict — and the draft concepts suggest it might — manufacturers may discover that the hardest part of compliance isn't replacing PFAS, but persuading regulators that they shouldn't have to.