Skip Repeated Content

Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by regulations regarding the presence of per- and polyfluoroalkyl substances (“PFAS”) in their products.  This area is rapidly developing as states create new laws, and the penalties and litigation risk for non-compliance can be significant. Below is an overview of enacted and proposed state laws and regulations as of August 10, 2021, to assist you in investigating whether your products may be impacted. While this article focuses on state laws and regulations, we note that the House of Representatives recently passed the PFAS Action Act of 2021, which among other things, includes provisions regarding labeling requirements for certain consumer products (see section 10 of the Act for additional information.)  While the Senate still needs to approve this bill, it demonstrates that federal attention is now being directed to PFAS consumer products issues, and that federal action in this area is reasonably likely. PFAS is a family of chemicals comprised of over 5,000 compounds.  According to the Agency for Toxic Substances and Disease Registry (“ATSDR”), PFAS have been reported in a variety of consumer products, including the following:

  • Some grease-resistant paper, fast food containers, microwave popcorn bags, pizza boxes, and candy wrappers;
  • Nonstick cookware (e.g., Teflon);
  • Stain resistant coatings used on upholstery, or other fabrics;
  • Water resistant clothing such as “durable water repellent clothing;”
  • Cleaning products;
  • Personal care products (e.g., shampoo, dental floss) and cosmetics (e.g., nail polish, eye makeup); and
  • Paints, varnishes or sealants.

Some studies have also shown that certain PFAS chemicals accumulate in humans and animals, including deer meat and fish tissue.

Specific Consumer Product Regulations

States have taken many different approaches to regulating consumer products containing PFAS.  State regulations of PFAS in consumer products have principally focused on the following product sectors, but these categories are not exclusive:

  • Food Packaging;
  • Personal Care Products;
  • Children’s Products;
  • Use and Manufacturing;
  • Textiles, Fabrics, Carpets or Rugs, and Upholstery; and
  • The Consumption of Fish Tissue and Deer Meat.

     

The following chart identifies what specific product categories each state regulates, but does not include the specific regulatory levels or requirements to avoid confusion because the structure and limits vary widely from state to state.  

State Product Categories Regulatory Status Reference and Details
Alabama Fish Consumption Advisory The Alabama Dept. of Health restricts the number of fish people should consume from one reservoir and two creeks
Alaska Fish Consumption Advisory The Alaska Dept. of Health and Social Services prohibits all fish consumption from Kimberly Lake
Arizona Food Packaging Proposed HB 2095
California All consumer products sold to California consumers may require warnings if these products contain PFOA or PFOS above safe harbor levels (California Proposition 65) Enacted 27 CCR 27001
Cosmetics Enacted AB 2762 and AB 495
Rugs and Carpets Enacted Z-2020-0218-04
Cookware Proposed AB 1200
Children’s Products Proposed AB 652
Food Packaging Proposed AB 1200
Connecticut Food Packaging Enacted SB 837
Consumer Packaging Proposed SB 926
Consumer Products (general) Proposed SB 404
Food Packaging Proposed SB 111
Water Safety and Bottled Water Restrictions Proposed HB 6615
Iowa Food Packaging Proposed SF 19 and HF 293 (more inclusive bill)
Maine PFOS as a “Priority Chemical” in Children’s Products Enacted 38 M.S.R.A. 1693-A(1), 06-096 Chapter 890
Food Packaging Enacted 32 M.S.R.A. 26A. 17-31-1731 et seq.
Aerial Application of Pesticides Enacted LD 264
Carpets, Rugs, and Fabric Treatments Enacted LD 1503
Prohibiting PFAS in all products by 2030 and reporting requirements Enacted LD 1503
Fish Consumption Advisory Remedial Action Guidelines for Certain Types of Fish (pg. 66)
Maryland Cosmetics Enacted HB 643
Rugs or Carpets Proposed HB 22
Food Packaging Proposed HB 22
Massachusetts Food Packaging Proposed S 1494
Mosquito Management Proposed S 556
Miscellaneous Products: (1) child passenger restraints; (2) cookware; (3) fabric treatments; (4) personal care products; (5) rugs and carpets; and (6) upholstered furniture Proposed H 2350
Michigan Fish Consumption Advisory The Michigan Dept. of the Env. advises that people should not eat certain types of fish and limit the fish consumption depending on the specific location
Deer Restrictions Advisory One “do not eat” restriction within a certain five-mile area
Labeling of Consumer Products Proposed SB 0217
Food Packaging Proposed HB 5250 and SB591
Minnesota Food Packaging Enacted  SF 20
Fish Consumption Advisory The Minnesota Dept. of Health recommends not eating fish from one lake and consuming limited numbers of certain kinds of fish depending upon the specific location
Food Packaging Proposed SF 70 and SF 373
Composting Proposed SF 148
Discretion to Prohibit PFAS in Cannabis Packaging Proposed HF 600
New Jersey Fish Consumption Advisory The New Jersey Dept. of Env. Protection has issued limits regarding fish consumption for the high risk and general populations (pg. 20)
New York Children’s Products Enacted S 501B
Food Packaging Enacted S 8817
Carpets Proposed S 5027A
Apparel Proposed S 6291
North Carolina Use and Manufacturing Proposed S 638
Oregon Children’s Products Enacted 431A.250 et seq.
Food Packaging – Plastic Utensils Proposed HB 2365
Carpets Proposed HB 3271
Rhode Island Food Packaging Proposed SB 110
Vermont Children’s Products Enacted 18 V.S.A. 1773
Food Packaging Enacted S 20
Rugs, Carpets, and Certain Stain-Resistant Treatments Enacted S 20
Ski Wax Enacted S 20
Labeling for Various Consumer Products Proposed H 27
Virginia Food Packaging Proposed HB 1712
Washington Food Packaging Enacted RCW 70A.222.070
Children’s Products Enacted WAC 173-334-010 et seq.
Pollution Prevention for Our Future Act, identifying various “priority” consumer products using PFAS substances Enacted SB 5135
Cosmetics Proposed SB 5480
Wisconsin Fish Consumption Advisory The Wisconsin Dept. of Natural Resources advises that people should not consume certain types of fish in numerous creeks and lakes
Deer Consumption Advisory Issued a “do not eat” deer liver restriction from a certain five-mile area

  No Regulations:  Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming

Conclusion

While several states do not currently have any adopted laws or regulations with respect to PFAS in consumer products, many are considering ways to address these chemicals, and as noted above, Congress is also considering regulation at a national level.  Whether or not your business is currently subject to consumer product regulations related to PFAS, a prudent first step to evaluate your potential risk is to determine whether any of your products or production methods contain or use these chemicals. If you believe that you may be impacted by an enacted or proposed regulation, or if you would like help with evaluating whether PFAS may be present in your products, please contact Tom Lee or John Kindschuh at Bryan Cave Leighton Paisner LLP.