PFAS: the latest developments on its legal status and regulation

In this blog, we discuss the legal status and administrative law regulation of PFAS at the moment, and list some developments in this regard.

Background

Before we go any further, it is good to reiterate what PFAS means. PFAS stands for per- and polyfluoroalkyl substances. This is a large group of chemicals that do not occur naturally in the environment but are man-made. It concerns thousands of synthetic chemicals widely used in society. They contain very strong chemical bonds that mean they do not degrade much, if at all, when used or in the environment. Most PFAS in the environment are also easily transported long distances away from the source of their discharge. PFAS are often found in groundwater, surface water and soil. Cleaning them up is technically difficult and expensive. If PFAS emissions continue, they will continue to accumulate in the environment, drinking water and food (see RIVM and ECHA websites).

Little is still known about many PFAS but a number of PFAS, such as PFOS, PFOA and GenX substances, are known to pose risks to human health and the environment (see also RIVM website).

Legal status and regulation PFAS

PFAS as Substance of Very High Concern (SVHC)

There is no regulation (yet) that deals with 'PFAS' as a substance group. PFAS is also not a legally defined term. This means that we will not find regulation of substances that qualify as PFAS (i.e. per- and polyfluoroalkyl substances) under the heading of 'PFAS' in European and national laws and regulations. 

Currently, the main catch-all for regulating PFAS is the term 'Substance of Very High Concern' (SVHC) (Zeer Zorgwekkende Stoffen (ZZS)). SVHC are substances that are hazardous to humans and the environment because they, for example, impair reproduction, are carcinogenic or accumulate in the food chain. Since the end of 2024, PFAS have been classified as SVHC and are on the SVHC list. Rules that apply to SVHC therefore also apply to substances in the PFAS group. 

Legally, a substance is a SVHC if, in summary:

1. it meets the criteria for classification in the hazard class carcinogenicity category 1A or 1B, the criteria for classification in the hazard class genital mutagenicity category 1A or 1B, the criteria for classification in the hazard class reproductive toxicity category 1A or 1B;
2. it has adverse effects on sexual function, fertility or development, is (very) persistent, (very) bioaccumulative and toxic; and/or
3. it is a substance such as substances having endocrine-disrupting properties or having persistent, bioaccumulative and toxic properties or very persistent and very bioaccumulative properties, which do not fulfil the criteria under ii, in respect of which there is scientific evidence of probable serious effects to human health or the environment which give rise to an equivalent level of concern to those of the substances listed under i and ii.

Determination of i-iii is done in accordance with the criteria referred to in Article 57 REACH. See also Article 5.22a(1) Living Environment Activities Decree (Besluit activiteiten leefomgeving). 

Substances on specific European substance lists qualify as SVHC (see Article 5.22a(2) Living Environment Activities Decree). SVHC were included as a substance group on such a list in 2024; the list of substances for priority action established under Article 6 of the OSPAR Convention (which deals with the protection of the North-East Atlantic Ocean) (see Article 5.22a(2), introductory phrase and under a, introductory phrase and under 5° Living Environment Activities Decree).

The central government stresses that with the designation of PFAS as SVHC, there is an immediate minimisation obligation for PFAS. Emissions of SVHC must be minimised as much as possible. Before the Environment and Planning Act came into force, this minimisation obligation applied specifically to emissions of SVHC to air (Section 2.4(2) Environmental Management Activities Decree (Activiteitenbesluit Milieubeheer)) and emissions of SVHC to water (via the BAT document General Assessment Methodology (Algemene Beoordelingsmethodiek)). Since the entry into force of the Environment and Planning Act, according to the legislator, this minimisation obligation falls under the duty of care in Article 2.11 of the Living Environment Activities Decree (see the transposition table to Implementing Decree Environment and Planning Act, included in Stb. 2020, 400). This is however not as clearly formulated in Article 2.11 of the Living Environment Activities Decree as it was in the former Article 2.4(2) of the Environmental Management Activities Decree. The minimisation obligation is probably read into the requirement that all appropriate preventive measures against environmental pollution and to protect health are taken and that no significant environmental pollution is caused. In our opinion, the minimisation obligation could have been included more clearly in the Living Environment Activities Decree. 

Because the minimisation obligation follows from Article 2.11 of the Living Environment Activities Decree - which is generally defined and not specifically aimed at SVHC - there has in fact already been an obligation to reduce emissions of PFAS known to pose risks to the environment or health since the Environment and Planning Act entered into force on 1 January 2024. After all, since that moment there has been an obligation to take all appropriate preventive measures against environmental pollution and to protect health. However, the problem is that for many PFAS, the environmental and health impact is not yet known. The designation of PFAS as SVHC is helpful in that light. 

Moreover - in addition to the minimisation obligation - additional rules apply to PFAS, included in Section 5.4.3 of the Living Environment Activities Decree. Those rules do not apply to everyone, but only to environmentally harmful activities for which this is designated. This includes heavier industry (such as refineries and the metal industry). The companies to which those rules apply must draw up an avoidance and reduction programme examining the avoidance, or if this is not possible, reduction of SVHC emissions (article 5.23 Living Environment Activities Decree). They must also inform the competent authority every five years about emissions of SVHC and the possibilities of reducing them (Article 5.24 Living Environment Activities Decree). From the wording in Articles 5.23 and 5.24, one could conclude that companies are only obliged to report on possible measures to avoid and limit SVHC emissions, without being obliged to implement those measures. In conjunction with the minimisation obligation, the obligation to implement measures does apply. Articles 5.23 and 5.24 of the Living Environment Activities Decree require companies to investigate measures to avoid or limit SVHC emissions and inform the competent authority accordingly. Under the minimisation obligation, those companies are obliged to actually take those measures.  

Relevant to emphasise is that imission limit values apply to various SVHC (article 2.25 Living Environment Activities Decree), but PFAS are not (yet) covered by these. Unlike emission limit values, imission limit values do not refer to the quantity that a company may emit, but to the quantity that may be present in the air, as a result of the emission. 

No emission limit values for PFAS for emissions to air

The Living Environment Activities Decree includes limit values for emissions to air of specific substances (Section 5.4.4). This section applies only to environmentally harmful activities for which this is designated and to the extent that no BAT conclusions apply to those emissions. Substances and dust classes are listed in Annex III of the Living Environment Activities Decree (Article 5.28). PFAS are not included in that list of substances. PFAS are therefore not subject to a limit value for emissions to air.  

PFAS in soil

Soil contamination arising at the time of or after the Environment and Planning Act came into force, is regulated through the general duty of care set out in Sections 1.6 and 1.7 of the Environment and Planning Act, the specific duty of care set out in Article 2.11 of the Living Environment Activities Decree, the unusual occurrences regulation set out in Section 19.1 of the Environment and Planning Act and rules in environmental plans or regulations including, for example, clean-up obligations but also specific duties of care. On this, see also our earlier blog on the regulation of soil protection under the Environment and Planning Act.  

For contaminants that arose before the Environment and Planning Act entered into force but after 1 January 1987, the duty of care under Section 13 of the Soil Protection Act (Wet bodembescherming) will continue to apply. Because many of the contaminations found with high concentrations of PFAS originated from actions or activities in that period, Section 13 of the Soil Protection Act still remains highly relevant for soil and groundwater contaminations with PFAS, according to the State Secretary of I&W in a parliamentary letter dated 13 March 2025. In view of this, the ‘Guidance duty of care under article 13 of the Soil Protection Act in the case of soil contamination with PFAS (Handreiking zorgplicht onder artikel 13 van de Wet Bodembescherming bij bodemverontreiniging met PFAS)’ was created. The State Secretary explicitly explains that the Guidance is a clarification of existing laws and regulations - in particular Section 13 of the Soil Protection Act - and not an additional or new policy. The Guidance offers an assessment framework for implementation practice regarding the interpretation of, in particular, Article 13 of the Soil Protection Act in case of soil contamination with elevated concentrations of PFAS. This assessment framework intends to help competent authorities assess i) whether in a concrete situation there is a violation of Section 13 of the Soil Protection Act or whether the Environment and Planning Act applies, and ii) which remedial measures can be expected in a concrete case.

European PFAS ban

A proposal by the Netherlands, Denmark, Germany, Norway and Sweden for a European PFAS restriction via the REACH regulation is pending at European level. The proposal aims to ban the production, marketing and use of PFAS. The ban covers the production of PFAS itself and PFAS as a component of another substance, mixture or article. See also our earlier blog on the proposal for a European PFAS ban. 

An update of that proposal was published by the European Chemicals Agency (ECHA) on 20 August 2025. The ECHA Scientific Committees on Risk Assessment (RAC) and Socio-Economic Analysis (SEAC) are now preparing their opinions and aim to finalise them by the end of 2025. Those opinions will cover more than 90% of PFAS emissions and volume. ECHA aims to submit the final RAC and SEAC opinions to the European Commission by 2026. The European Commission will ultimately decide - in consultation with EU member states - on the proposed PFAS restriction.

In the meantime, Europe is not sitting still:

• Meanwhile, at the European level, the use of a subset of PFAS has also been restricted. Last year, the European Commission banned the use of the PFAS 'undecafluorhexanoic acid' (PFHxA), in: consumer textiles (such as raincoats), food packaging (such as pizza boxes), consumer mixtures (such as waterproof sprays), cosmetics (such as skin care products) and in some fire-fighting foam applications (e.g. for training and testing). This ban will come into force on 10 October 2026.
• On 29 April 2025, member states agreed to a European Commission proposal for a general restriction on the use of PFAS in specific fire-fighting foams. This is the first time an entire PFAS group has been restricted under REACH, albeit for a specific sector, and thus ahead of the general PFAS restriction under preparation. The ban sets a strict limit of 1 mg/kg PFAS in firefighting foams and aims to reduce environmental pollution from these persistent and harmful substances.

Like the general PFAS restriction, these two measures also find their basis in the REACH regulation.

National PFAS ban 

With the Parliamentary Letter of 21 July 2025, the Minister and State Secretary of I&W informed the Parliament about the possibilities of a national PFAS ban, in anticipation of the European ban. They discuss two options: a product ban on trade and use and a discharge ban. 

Regarding the product ban on trade and use of products containing PFAS, they note that the REACH regulation allows for a national ban, albeit only temporarily. For an ongoing ban, there is an obligation to submit a proposal to have REACH amended, such as the one submitted by the Netherlands and others that we discussed above. For a temporary ban in anticipation of a European ban, the Minister and State Secretary note that there must be an urgent environmental interest. According to them, the substantiation in case of a total ban will require such a lot of preparation and research that it is unlikely that such a ban would enter into force sooner than the European ban. A ban on one or a few products would then be more obvious, as France and Denmark have. However, the Parliamentary Letter also explains that the environmental benefits of a ban on a few products will be more limited than a total European ban, that it would require a lot of enforcement because products banned here would still be available for sale across the border, and this would additionally affect the national retail sector. A transition period for those affected by the ban (e.g. producers or traders of the products concerned) must also be taken into account. The Minister and State Secretary do not draw a conclusion from their considerations, but we read in this that they see little point in a temporary, partial national ban on trade and use of products containing PFAS.

Regarding the discharge ban, the Minister and State Secretary note that currently there are already several ways to limit the discharge of PFAS, including through the licensing system and the qualification of PFAS as SVHC discussed above. The possibility exists to additionally implement a national ban on PFAS discharges, according to the Minister and State Secretary. Again, they distinguish between a total ban or a partial ban. A total ban is considered undesirable: PFAS are present in so many places, from business processes to household wastewater streams, that the social impact of a total ban would be too great. 
In the context of a partial ban, it is noted that certain sectors or activities designated in the Living Environment Activities Decree could potentially fall under a ban and/or a ban could focus on PFAS newly added to the environment. According to the Minister and State Secretary, the latter is likely to be difficult to enforce: for example, companies extract water from wells containing PFAS and eventually discharge it as wastewater. The distinction between newly added or existing PFAS in the wastewater is then difficult to make. The Parliamentary Letter stresses that a partial ban on certain activities can stimulate innovation among the companies carrying out these activities by forcing them to find alternative treatment routes. However, the additional costs and other environmental impacts created by this, such as CO2 and nitrogen emissions, must be taken into account, according to the Minister and State Secretary. Again, there will be a transition period for those affected by the ban. The Minister and State Secretary's considerations clearly read as an initial exploration. They note that further elaboration of a partial discharge ban is needed and the government will work on this in the coming period. 

We wonder whether a national ban, in whatever form, is really going to happen. In their conclusion, the Minister and State Secretary note that companies are already currently required to do everything reasonably practicable to work towards zero emissions of PFAS as much as possible. In their view, the most efficient solution is the widest possible ban, which is what the proposal at European level aims to achieve. Although they note that the possibilities of a partial discharge ban are being looked at in parallel, based on the letter we have the impression that the Minister and State Secretary think this ultimately has more disadvantages than advantages. 

Drinking water standard for PFAS

In the Parliamentary Letter  of 21 July 2025 (PFAS Collective Letter), the Minister and State Secretary also address the PFAS standard for drinking water.

The Drinking Water Decree contains quality requirements for drinking water in the Netherlands. The current Drinking Water Decree includes a standard of 0.10 μg/l for PFAS-20: this concerns the sum of PFAS considered risky in relation to water intended for human consumption and included the European Drinking Water Directive (Annex III, part B, point 3). In a 2022 report, RIVM derived an indicative drinking water guidance value of 4.4 ng/l expressed as Perfluorooctanoic acid (PFOA) equivalents (PEQ), based on research by the European Food Safety Authority (EFSA). This guide value has been in place as an indicative guide value since October 2022, but has not been incorporated into laws and regulations. The Minister of I&W is considering including this guide value in the Drinking Water Decree and has asked RIVM to study the pros and cons of implementing this drinking water guide value. 

It follows from RIVM's report that drinking water is safe to drink when the PFAS concentration meets the indicative drinking water guideline value of 4.4 ng PEQ/l. At the same time, according to RIVM, implementing this guide value as a standard poses significant technical, financial and societal challenges. Drinking water companies, especially those dependent on surface water, need at least 10 years to implement a membrane system. RIVM concludes that the implementation of this standard will lead to high investments, increasing operational costs and higher drinking water tariffs. In addition, waste streams containing PFAS from treatment processes are a major bottleneck due to limited treatment capacity, permit requirements and environmental impact, such as water loss and increased CO2 emissions, according to RIVM.

The Minister and State Secretary mention that the World Health Organisation (WHO) is currently working on an advisory on PFAS exposure. According to them, this opinion will give rise to negotiations with other member states on the PFAS standard in the European Drinking Water Directive. For this reason, they do not consider it useful to amend the Drinking Water Decree at this time. The Minister and State Secretary stress that drinking water companies are nevertheless already taking measures and they are in conversation with drinking water companies on the operational and financial consequences of a new PFAS standard.

In conclusion

Although developments and research concerning PFAS are proceeding at a rapid pace, the legal standardisation and regulation of PFAS is not yet very concrete. The fact that PFAS are now classified as SVHC - and are subject to a minimisation obligation - helps, but can also lead to discussion: to what level can companies avoid or limit PFAS emissions? A legal limit would provide more clarity, but it is currently not set. For PFAS in drinking water, there is such a limit - under the European Drinking Water Directive - but research shows that this standard is no longer protective enough. It is possible that a ban on PFAS at the European level could provide a solution. However, it could take some time before that ban is in place. The opinions of RAC and SEAC regarding this proposal will be submitted to the European Commission by 2026, after which the European Commission - in consultation with member states - will decide on the ban.