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Summary

Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by regulations regarding the presence of per- and polyfluorinated chemicals (“PFAS”) in their products. This area of law is rapidly developing as states create new laws, and the penalties for non-compliance can be significant. Below is an overview of enacted and proposed state laws and regulations to assist companies in beginning an investigation into whether their products are, or will be impacted.

PFAS Background

PFAS is a family of chemicals comprised of over 5,000 compounds. PFAS have been reported in a variety of consumer products and industrial applications including the following: children’s products, textile and apparel items, carpet cleaners, non-stick products (e.g., Teflon), stain resistant coatings, polishes, paints, cleaning products, food packaging (including pizza boxes, microwave popcorn bags, and take-out food containers), firefighting foam, certain cosmetics, and ski wax. Some studies have also shown that certain PFAS chemicals accumulate in humans and animals, including deer meat and fish tissue.

State regulations of PFAS in consumer products have focused on the following product sectors:

  • Children’s products
  • Food packaging
  • Firefighting foam
  • Personal protective equipment for firefighters (“PPE”)
  • The consumption of fish tissue and deer meat
  • A range of other products including pet products, manufacturing products such as textiles and rugs, and cosmetics.

Many of the states take different approaches to regulating consumer products containing PFAS. For example, Washington forbids any PFAS chemicals from being added to fiber-based food packaging, whereas other states allow the use PFAS chemicals unless there is a viable alternative (e.g., Connecticut or New Jersey, both proposed). For the purposes of this Alert, we simply note whether or not a state has laws or regulations regarding a specific product category, but we do not compare the differences between the various regulations. However, BCLP would be happy to discuss the details of the different state regulations if you have specific questions. 

State

Product Categories

Regulatory Status

Reference

Alabama

Fish Consumption

 

Enacted

The Alabama Dept. of Health restricts the number of fish people should consume from one reservoir and creek

Alaska

Fish Consumption

Firefighting Foam discharge notification in certain regions

Proposed: Firefighting Foam

Enacted

Enacted

 

 

Proposed

The Alaska Dept. of Health and Social Services prohibits all fish consumption from one lake

 

Proposed: Firefighting Foam SB 176

Arizona

Firefighting Foam

Enacted

Ariz. Rev. Stat. 36-1696

California

All consumer products may require warnings if they contain PFOA or PFOS (California Proposition 65)

Adopted: Cosmetics, PPE, and Firefighting Foam

Enacted

Proposition 65: 27 CCR 27001

Cosmetics: AB 2762

Firefighting Foam and PPE: SB 1044

Colorado

Firefighting Foam and PPE

Enacted

Firefighting Foam Restriction: CRS 24-33.5-1234

Firefighting Foam and PPE: CRS 25-5-1301 et seq.

Connecticut

Firefighting Foam and Food Packaging

Proposed

Firefighting Foam: SB 297 and HB 5288

Food Packaging: HB 5291

Delaware

Firefighting Foam

Proposed

SB 217

Georgia

Firefighting Foam

Enacted

O.C.G.A. 25-2-41

Illinois

Firefighting Foam and Children’s Products

Proposed

Firefighting Foam: SB 3154, HB 5529, and HB 5003

Children’s Products: SB 3378

Indiana

Firefighting Foam

Enacted

Ind. Code 36-8-10.7-1 et seq.

Iowa

Firefighting Foam, PPE, and Food Packaging

Proposed

Food Packaging: S. 386 and H.F. 775

PPE and Firefighting Foam: H.F. 775 and H.F. 2241

Kentucky

Firefighting Foam

Enacted

Ky. Rev. Stat. 227.395

Maine

PFAS as a “Priority Chemical,”[1] especially as a Children’s Chemical of Concern

Adopted: Food Packaging, and Fish Consumption

 

Proposed: Firefighting Foam

Enacted

 

 

Enacted

 

 

 

Proposed

PFAS as a “Priority Chemical”: 38 M.S.R.A. 1693-A(1), 06-096, Chapter 890 (PFOS designation)

Food Packaging: 32 M.S.R.A, 26A, 1731-1738

Fish: Remedial Action Guidelines for certain types of fish

Proposed: Firefighting Foam LD 2147

Maryland

Firefighting Foam

Enacted

Md. Code, Envir. 6-1601 et seq.

Massachusetts

Food Packaging, PPE, and Children’s Products

Proposed

Food Packaging: SD 678 and HD 3750

PPE: SD 1784 and HD 3661

Children’s Products: SD 1518

Michigan

Firefighting Foam, Fish Consumption, and Deer Restrictions

 

 

 

 

 

 

Proposed: Food Packaging

Enacted

 

 

 

 

 

 

 

Proposed

Firefighting Foam: Mich. Comp. Laws 408-1014r, 324-14701 et seq., and 29-369c

Fish: The Michigan Dept. of the Env. advises that people should not eat certain types of fish or limit the fish consumption depending on the location

Deer: One “do not eat” restriction from a certain five-mile area

Proposed: Food Packaging SB 1072

Minnesota

Adopted: Firefighting Foam and Fish Consumption

 

 

 

Proposed: Food Packaging

Enacted

 

 

 

 

 

Proposed

Firefighting Foam: Minn. Stat. 325F.072

Fish: The Minnesota Dept. of Health recommends not eating fish from one lake and consuming limited numbers of certain kinds of fish depending upon the location

Proposed: Food Packaging (5 separate bills) SF 2088, SF 3225, HF 3657, HF 4554 and HF 20

New Hampshire

Adopted: Firefighting Foam and PPE

 

Proposed: Removal of Food Containers from Schools, Firefighting Foam (registry), Bottled Water Testing, and Labeling Committee

Enacted

 

 

 

Proposed

Firefighting Foam: N.H. Rev. Statute 154:8-b

PPE: N.H. Rev. Statute 154:8-c

Proposed: Food Containers: HB 1425

Firefighting Foam (registry): HB 1569

Bottled Water: HB 1274

Labeling Committee: HB 1446

New Jersey

Adopted: Fish Consumption

 

 

 

Proposed: Firefighting Foam, Food Packaging, and Children’s Products

Enacted

 

 

 

Proposed

Fish: The New Jersey Dept. of Environmental Protection has issued limits on fish consumption for high risk and general populations

Proposed: Firefighting Foam A747

Food Packaging: A3350

Children’s Products: A2104

New York

Adopted: Children’s Products, PPE, and Firefighting Foam

 

 

 

 

Proposed: Food Packaging, Avoid PFAS in Future State Purchases, Children’s Products, Pet Products, Firefighting Foam (incineration), certain PFAS identified as “Emerging Contaminants”[2]

Enacted

 

 

 

 

 

Proposed

Children’s Products: Laws of New York, Sec. 37-0101 et seq.

PPE: S439A (Sec. 4)

Firefighting Foam: 6 NYCRR 597

 

Proposed: Food Packaging S2000B and S8817

Future Purchases: S1108

Children’s Products (add to existing law): A9765

Pet Products: A7876

Firefighting Foam (incineration): A9952

Emerging Contaminant: A7839

North Carolina

Firefighting Foam, PPE, and PFAS Use in any Product

Proposed

Firefighting Foam and PPE: HB560

PFAS Use in any Product: HB1109

Ohio

Firefighting Foam

Proposed

Firefighting Foam: SB328

Oregon

Children’s Products

Enacted

Toxic Free Kids Act: 431A.250 et. al.

Pennsylvania

Firefighting Foam

Proposed

Firefighting Foam: SB919

Rhode Island

Food Packaging and Personal Care Products

Proposed

Food Packaging: HB7307 and SB2068

Personal Care Products: HB7834

Vermont

Adopted: Children’s Products

Proposed: Strict Liability for Companies that Release Toxic Chemicals, Food Packaging, Firefighting Foam and PPE, Prohibits Manufacture of Rugs and Carpets, and Labeling

Enacted

 

Proposed

Children’s Products: 18 V.S.A. 1773

Proposed: Strict Liability S37

Food Packaging: S101 and H777

Firefighting Foam and PPE: S295 and H721

Rugs and Carpets: H771

Labeling: H928

Virginia

Adopted: Firefighting Foam

Proposed: Food Packaging

Enacted

 

Proposed

Firefighting Foam: VA Code Ann. 9.1-207.1

Proposed: Food Packaging HB1712

Washington

Adopted: Children’s Products, Firefighting Foam, PPE, Food Packaging, and Pollution Prevention for Our Future Act

 

 

 

 

Proposed: Firefighting Foam (notification and penalty provisions)

Enacted

 

 

 

 

 

 

 

Proposed

Children’s Safe Products Act: WAC 173-334-010 et seq.

Firefighting Foam: RCW 70A.400.010 et seq.

PPE: RCW 70A.400.030

Food Packaging: RCW 70A.222.070

Pollution Prevention for Our Future Act: SB 5135

Proposed: Firefighting Foam HB 1143

 

Wisconsin

Adopted: Firefighting Foam, Fish Consumption, and Deer Restrictions

 

 

 

 

 

Proposed: Firefighting Foam (storage), Food Packaging

Enacted

 

 

 

 

 

 

 

 

Proposed

Firefighting Foam: Wis. Statute 299.48

Fish: The Wisconsin Dept. of Natural Resources advises that people do not consume certain types of fish from one creek and lake

Deer: One “do not eat” deer liver restriction from a certain five-mile area

Proposed: Firefighting Foam AB792

Food Packaging: AB952

 

No Regulations: Arkansas, Florida, Hawaii, Idaho, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.

Conclusion

Several of the states that do not currently have any adopted or proposed laws or regulations are considering consumer product regulations. These measures are not in effect yet, but may be soon. Accordingly, this client alert reflects the status of state regulation of PFAS in consumer products only as of October 12, 2020

If you believe that you may be impacted by an enacted or proposed regulation, or if you have a question about a PFAS consumer product regulation in a specific jurisdiction, please contact Tom Lee or John Kindschuh at Bryan Cave Leighton Paisner LLP.

1. Certain legislators designated PFOS as a “Priority Chemical,” which is identified through biomonitoring, sampling, or analysis as a chemical of concern found in human blood, household dust, indoor air, drinking water, or a consumer product in the home environment.  A “Priority Chemical” designation applies to various manufacturers of products that add PFOS (especially to children’s products), such as water-resistant clothing.   Manufacturers selling priority chemicals in an amount greater than in de minimis quantities must provide notification to the Maine Dept. of the Environment.

2. PFOS, PFOA, PFNA, PFHxS, PFHpA, and PFBS are proposed to join a list of 77 chemicals identified by the NY Department of Environmental Protection (Laws of New York, Sec. 37-0905) that pose a concern in drinking water, pharmaceutical and personal care products, and other household items. 

This document provides a general summary and is for information/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Specific legal advice should always be sought before taking or refraining from taking any action.