Local governments in China have begun regulating possible contamination from PFAS “forever chemicals” in pollution discharge and consumer products. PFAS have been brought under a mandatory control regime for novel pollutants, which imposes monitoring and right-to-know obligations. Personal liability, including criminal penalties, can be imposed on anyone deemed a responsible person, which could include foreign management. Even if regulators do not take enforcement action, private lawsuits and public interest litigation can be brought over PFAS contamination allegations. In this article, we will explain the state of China’s law on PFAS, along with strategies businesses can use to mitigate risk.

Contents

• The PFAS Regulatory Landscape
• PFAS Standards and Rules
• Regulatory Liability Risks
• Preventing Legal Liability

The PFAS Regulatory Landscape

Despite lacking a specialized PFAS regime, China has issued policies, standards, and technical specifications that cover it, summarized as follows.

PFAS Definitions

PFAS are a group of synthetic chemicals with a wide range of uses. The group includes PFOA, PFOS, and PFHxS, which have several useful properties. In particular, they can resist heat, corrosion, oil, water, and staining. As a result, they are used extensively in China for industrial and consumer products, such as textiles, clothing, household chemicals, electronics, fire resistant materials, foods, and medical supplies.

PFAS are the organic pollutants called “forever chemicals,” because a highly stable bond between carbon and fluorine atoms prevents them from decomposing in the environment or plants and animals. Recently, scientists in China have issued grave warnings to the general public that PFAS create a number of serious human health risks involving toxicity and carcinogenicity.

Source Control, Release Reduction, and Remediation

PFAS are classified by China as a novel type of pollutant, subject to the Novel Pollutant Control Action Plan (State Council, May 2022), which mandates control in a three-stage process: (1) source control, (2) release reduction, and (3) remediation.[1][2] First, source control restricts novel pollutants from entering the environment. Regulatory actions encompass:

• Banning or restricting hazardous or environmentally damaging chemicals,
• Releasing emissions with audits,
• Mandating best available technologies and environmental practices, green design and product development,
• Solid waste management requirements,
• Site remediation orders.

Chinese laws on source control, release reduction, and remediation allow using PFAS and exempt some PFOA uses. Existing standards regulate fluoride compounds, not PFAS specifically. The lack of PFAS emission standards means dischargers lack clear emissions control guidelines, resulting in inconsistent interpretations by regulators in different jurisdictions.

Note that there are local government effluent standards on PFAS. For example, Sichuan rules provide for an environmental impact assessment clearance and pollutant discharge permit process.[4] Under these rules, industrial zone wastewater dischargers and central wastewater treatment facilities must identify the applicable wastewater pollutants and appropriate limits, based on the materials and processes used.

Rules for ordinary businesses differ from rules for treatment plants. Applicable to businesses, the rules establish a PFOA discharge limit of 0.05mg/L, but the applicable limit for an industrial park’s centralized waste treatment facility is 0.015mg/L. PFOS may not be detectable in indirect discharge from a business or direct discharge from an industrial park centralized waste treatment facility.

In the future, more emission standards on PFAS compounds that may apply exempted circumstances for businesses and water treatment plant discharges may be issued at the national and local levels.

PFAS Standards and Rules

Ordinary exposure pathways to PFAS for ordinary people are contact with clothing (i.e., jackets), baby products, and drinking water. China currently regulates PFAS in drinking water, consumer products, garments, and food contact materials. These are not currently mandatory except for food contact materials and articles’ additives.

For example, the China Drinking Water Quality Standards (GB 5749-2022) specify 152 parameters across three categories. Under § 4.2, drinking water must meet core and supplemental parameters, and the parameter limits for reference indicators are shown in drinking water.[5]

PFOA and PFOS are water quality reference parameters and not mandated. China may issue more mandatory standards in the future that limit PFAS content for drinking water businesses. Moreover, as PFAS in drinking water continues to be covered in the news, China may impose new basic and supplemental parameters in its Drinking Water Quality Standards, with which drinking water companies will have to comply.[5]

Duty to Monitor and Disclose

Private entities and public bodies that produce, process, use, or discharge anything on the China Novel Pollutants List will be listed as major pollution dischargers.[3][6] Major pollution dischargers have environmental law obligations including a duty to monitor and disclose and to mitigate environmental pollution and risks.

Environmental right-to-know rules affecting major polluters on PFAS and other substances are covered under 2022 rules, which require annual or ad hoc disclosures. Entities must file reports in each province’s right-to-know database.[7][8] Depending on the raw and auxiliary materials, production process, intermediate and final products used, a discharger may be required to use monitoring parameters from the list of priority pollutants. (See Polluter Self-Monitoring Technical Guidelines (HJ 819-2017)).[9]

The list classifies PFOS and PFOA as priority toxic pollutants, and monitoring is required if wastewater contains them. (See Polluter Self-Monitoring Technical Guidelines).[9] Monitoring is done using the two methods published by the Chinese Ministry of Ecology and Environment in December 2023:

• Determination of Perfluorooctanesulfonic Acid, Perfluorooctanoic Acid, and Their Salts in Water by Isotope Dilution Liquid Chromatography–Triple Quadrupole Mass Spectrometry (HJ 1333-2023)[10]
• Standard Test Method for Determination of Perfluorooctanesulfonic Acid, Perfluorooctanoic Acid, and Their Salts in Soil and Sediment by Isotope Dilution Liquid Chromatography–Triple Quadrupole Mass Spectrometry (HJ 1334-2023)[11]

Regulatory Liability Risks

Several obsolete products have been placed in the eliminated category (see 2024 Industrial Restructuring Guidance Catalog).[12] They are the following substances, including their salts and compounds:

• Perfluorooctanesulfonic acid,
• Perfluorooctanesulfonyl fluoride,
• Perfluorohexanesulfonic acid,
• Perfluorooctanoic acid,
• Coatings containing Perfluorooctanoic acid or Perfluorooctane sulfonic acid.

Companies, responsible parties, and management are subject to liability ranging from fines to total shutdowns.[12] Violating mandatory discharge limits or a maximum contaminant level for PFAS may also violate environmental or product/food safety law. For example, a company follows the Sichuan rule limits under its PFOS/PFOA discharge permit. (Sichuan Province Industrial Park Water Pollutant Discharge Standards) The company’s discharge exceedance would expose it to regulatory penalties such as fines for violating the Pollution Discharge Permit Regulations.[4][13]

PFAS violations can expose companies and individual managers to significant liability. If you need help with environmental issues in China, CBL offers legal services from affordable, qualified attorneys.

Civil Liability Risks

Even in the absence of a regulatory violation and although the national standard is not mandatory, responsible individuals are exposed to personal liability for compensatory damages if they cause PFAS contamination resulting in a public hazard or personal injury. PFAS dischargers are also exposed.

For example, drinking water cannot contain chemicals that pose a public health hazard in China. (See Drinking Water Standards (GB 5749-2022) § 4.1) A justice agency may impose liability for violating this standard in a way that causes the above harms, applying the Civil Code for torts under § 1165 or strict product liability under § 1202.[5][14] Water suppliers that contaminate drinking water with PFOS/PFOA that harms many consumers’ health may be sued in public interest litigation by a civil society organization.[15][16]

A justice agency may pursue strict liability against an entity for discharging PFAS such as to pollute the environment or harm others, even in the absence of fault, under Civil Code § 1229.[14] Additionally, government action or public interest litigation by civil society organizations meeting statutory prerequisites may be used to impose environmental damage liability for pollution through a negotiation or litigation process (See Civil Procedure Act and the Natural Resource Damage Assessment Rules).[15][17]

Criminal Liability Risks

The production or sale of adulterated food, criminal negligence resulting in death, and criminal negligence causing serious injury can be prosecuted under the Criminal Law Act.[18] PFAS concentrations that cause harm to health, serious injury, or death create liability for responsible individuals. China has actually obtained convictions for production or sale of adulterated food, where the water supply quality was below the level qualifying for coercive enforcement.

In Henan Case 1328-crm-586 (2019), a defendant was convicted for this offense where they operated a water plant that supplied drinking water to over 300 households in the area, but lacked health department permitting and where water samples did not pass under the China Drinking Water Quality Standards.[5][19]

Preventing Legal Liability

Take the following steps to reduce exposure under Chinese and international PFAS laws:

• Identify business processes where PFAS occur, manage compliance, and assess and control risks. Monitor for PFAS to prevent risks to people and the environment.
• Audit supply chains and look for alternatives to or ways to reduce reliance on PFAS; this will provide resilience.
• Carefully discuss PFAS compliance issues with your local environmental regulatory agencies, and obtain a legal analysis as needed.

Effectively mitigating PFAS liability risks in China requires expert legal guidance. Consider asking CBL to help you find a lawyer who can advise on these issues.

FOOTNOTES

[1] Building a Screening, Assessment, and Control Systems for Environmental Risk Management of Toxic Chemical Substances and Systematically Promoting the Governance of Novel Pollutants, (构建有毒有害化学物质环境风险管理“筛评控”体系 系统推动新污染物治理), (Ministry of Ecology and Environment, Jul. 15, 2022), in Mandarin

[2] Novel Pollutant Control Action Plan, (新污染物治理行动方案), (General Office of the State Council, May 4, 2022), in Mandarin

[3] Novel Pollutants List, (重点管控新污染物清单2023年版), (Ministry of Ecology and Environment, Dec. 29, 2022), in Mandarin

[4] Sichuan Province Industrial Park Water Pollutant Discharge Standards, (四川省化工园区水污染物排放标准), (Sichuan Administration of Ecology and Environment, Dec. 11, 2024), in Mandarin

[5] Drinking Water Quality Standards (GB 5749-2022), (生活饮用水卫生标准), (National Disease Control and Prevention Administration, Mar. 15, 2022), in Mandarin

[6] Environmental Regulatory Major Facility List Administrative Procedures, (环境监管重点单位名录管理办法), (Ministry of Ecology and Environment, Nov. 28, 2022), in Mandarin

[7] Entity Environmental Community Right-to-Know Reporting Procedures, (企业环境信息依法披露管理办法), (Ministry of Ecology and Environment, Dec. 11, 2021), in Mandarin

[8] Entity Environmental Community Right-to-Know Reporting Instructions, (企业环境信息依法披露格式准则), (General Office of the Ministry of Ecology and Environment, Jan. 4, 2022), in Mandarin

[9] Technical Guidelines for Self-Monitoring of Dischargers – General Principles (HJ 819-2017) § 5.2.1.3, (排污单位自行监测技术指南 总则), (Ministry of Environmental Protection, Apr. 26, 2017), in Mandarin

[10] Determination of Perfluorooctanesulfonic Acid, Perfluorooctanoic Acid, and Their Salts in Water by Isotope Dilution Liquid Chromatography–Triple Quadrupole Mass Spectrometry (HJ 1333-2023), (水质　全氟辛基磺酸和全氟辛酸及其盐类的测定　同位素稀释/液相色谱-三重四极杆质谱法), (Ministry of Ecology and Environment, Dec. 5, 2023), in Mandarin

[11] Standard Test Method for Determination of Perfluorooctanesulfonic Acid, Perfluorooctanoic Acid, and Their Salts in Soil and Sediment by Isotope Dilution Liquid Chromatography–Triple Quadrupole Mass Spectrometry (HJ 1334-2023), (土壤和沉积物　全氟辛基磺酸和全氟辛酸及其盐类的测定　同位素稀释/液相色谱-三重四极杆质谱法), (Ministry of Ecology and Environment, Dec. 5, 2023), in Mandarin

[12] Industrial Restructuring Guidance Catalog (2024 Edition), (产业结构调整指导目录(2024年本)), (National Development and Reform Commission, Dec. 27, 2023), in Mandarin

[13] Pollution Discharge Permit Regulations, (排污许可管理条例), (China State Council, Jan. 24, 2021), in Mandarin

[14] China Civil Code, (民法典), (National People’s Congress, May 28, 2020), in Mandarin

[15] China Civil Procedure Act, (民事诉讼法), (National People’s Congress, Apr. 9, 1991), in Mandarin

[16] China Consumer Protection Act, (消费者权益保护法), (National People’s Congress, Aug. 27, 2009), in Mandarin

[17] Natural Resource Damage Assessment Rules, (生态环境损害赔偿管理规定), (Ministry of Ecology and Environment, Apr. 26, 2022), in Mandarin

[18] China Criminal Law Act, (刑法), (National People’s Congress, Mar. 14, 1997), in Mandarin

[19] Henan Case 1328-crm-586 (2019), (2019豫1328刑初586号), (Tanghe County Court, Sep. 25, 2019), in Mandarin