Written on: July 1, 2025 by Dr. Steve Bennett
What is a CUU and should you apply for one?
There have been several developments on the per- and polyfluoroalkyl substances (PFAS) issue since HCPA’s last update in October.
• Colorado’s ban on intentionally added PFAS in fabric treatments and personal care and cosmetic products took effect on Jan. 1, 2025; however, the ban on hydrofluoroolefins (HFOs) used as propellants does not take effect until 2027.
• California’s ban on the sale of personal care and cosmetic products containing intentionally added PFAS is effective, and there are ongoing discussions in the State’s legislature about a much broader law that would phase out aerosol propellants considered to be PFAS by 2040.
• The next phase of Maine’s PFAS prohibitions take effect on Jan. 1, 2026, including bans on cleaning and cosmetic products and fluorinated containers.
o Aerosol propellants containing PFAS are not banned until Jan. 1, 2040.
• Minnesota’s prohibition of intentionally added PFAS for 11 product categories, including cleaning and personal care products, is effective. The State is currently developing rules for PFAS reporting, which will take effect by Jan. 1, 2026.
• New Mexico has enacted a law with narrow prohibitions that takes effect in 2027 and broader prohibitions that take effect in 2028. However, the law includes exemptions for products with uses that have acceptable substitutes under the U.S. Environmental Protection Agency’s (EPA) Significant New Alternatives Policy (SNAP) program.
• Canada recently completed a PFAS data collection effort and is expected to use that information to inform future consultations on consumer products.
• The EPA’s updated reporting period for the one-time PFAS Reporting Rule under the Toxic Substances Control Act (TSCA) has been delayed until April–October 2026.
Currently enacted and proposed PFAS prohibitions at the state-level. PFAS laws across the country have very specific scales and scopes for aerosol products. For example, California, Colorado and Connecticut prohibit PFAS in cosmetic products; however, Colorado and Connecticut do not include HFOs in their definition of a cosmetic product, but California does.
CUUs
Currently Unavoidable Uses (CUUs) are a key provision of the Maine and Minnesota laws. CUUs are defined as uses that are “essential for health, safety or the functioning of society” and apply to an application of PFAS in a product when the function provided by the PFAS is necessary for the product to perform as intended. The unavailability of PFAS for use in the product would render it unusable, resulting in a significant increase in negative health outcomes, an inability to mitigate significant risks to human health or the environment, or a significant disruption to the daily functions on which society relies. While this may seem straightforward, it is unclear how CUUs will be interpreted and implemented by regulatory agencies.
To better understand the challenges of understanding how CUUs will be managed by regulatory agencies, consider the process for performing a CUU determination for a pesticide product.
The application requires a detailed assessment of each intended use and site for which a pesticide product is labeled, the pests it targets and the broader context of available pesticide products. A specific product may qualify for a CUU exemption to prevent or minimize potential pest resistance in an agricultural crop; however, the same product may not qualify for a CUU exemption for managing other approved pest applications. Likewise, a product may qualify for a CUU exemption for the management of, for example, the emerald ash borer, a common invasive pest, but may not qualify as a CUU for other tree pests.
It is not clear how regulatory agencies will handle scenarios where a product with intentionally added PFAS receives a CUU determination for one of its registered use sites but not others. It is also unclear how they will assess potential pest resistance and human health and environmental impacts of alternative products.
It may also be challenging to define what is considered essential for health, safety or the functioning of society, including cost considerations when determining what is reasonably available, the duration of the “currently unavoidable” use status and the criteria for determining the safety of potential alternative products. Additionally, variations in CUU determinations across States can introduce further complexities.
Frankly, many questions will remain unanswered until a significant number of CUU determinations have been completed.
It is important to note that the CUU determination is a regulatory process and many of the details will be public. Should a product be granted a CUU determination, it is valid for 3–5 years, after which time a reapplication is required—or the product must be removed from the marketplace.
Maine accepted the first round of CUUs through June 2025 and is required to make determinations prior to Jan.1, 2026, the effective date of many of the State’s product bans.
Maine’s regulatory process allows for a manufacturer to designate trade secret information for non-disclosure; however, the State has also indicated that the CUU determination must rely on public information.
There are also cost considerations for a manufacturer to provide information in support of the CUU application, especially the determination of what alternatives are reasonably available, which can be particularly challenging to identify if the manufacturer does not have access to that information.
Aerosol product manufacturers can benefit and learn from initial CUU determinations before the implementation of the 2032 complete PFAS bans in Maine and Minnesota, as well as the aerosol propellant bans in 2040.
For more information about PFAS or State-specific questions, please contact me at sbennett@thehcpa.org. SPRAY
