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PFAS Update: July 2022 State-by-State Consumer Products Regulations

PFAS Update: July 2022 State-by-State Consumer Products Regulations

Jul 27, 2022
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This insight was originally published in July 2022. Visit our up-to-date blog on PFAS in consumer products: state-by-state regulations >


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.

While this article focuses on state laws and regulations, we note that the House of Representatives passed the PFAS Action Act of 2021 on July 21, 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 has been 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 8,000 compounds, and it may be significantly higher considering how a PFAS substance is defined.  According to the Agency for Toxic Substances and Disease Registry (“ATSDR”), PFAS have been reported in certain 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 sources, such as the United States Environmental Protection Agency (“EPA”), also states that certain PFAS chemicals accumulate both in the human body and animals since PFAS can be ingested through water and food.  Accordingly, certain states have enacted health advisories limiting the consumption of deer meat and fish tissue.

I. 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 thus far, but these categories are not exclusive:

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

Below is an overview of enacted and proposed state laws and regulations as of July 26, 2022, to assist you in investigating whether your products may be impacted.

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 Department of Health has issued limitations for fish consumption from one reservoir and two creeks

Alaska

Fish Consumption

Advisory

The Alaska Department of Health and Social Services has issued limitations for fish consumption in one lake

California

Proposition 65:  All consumer products sold to California consumers may require warnings if these products contain PFOA, PFOS and PFOS salts and transformation and degradation precursors, and PFNA above safe harbor levels

Enacted

27 CCR 27001

Cosmetics

Enacted

AB 2762

Rugs and Carpets

Enacted

Z-2020-0218-04 and DTSC Related Information

1) Cookware; and

2) Food Packaging

Enacted

AB 1200

Children’s Products

Enacted

AB 652

Recycling

Enacted

SB 343

Composting

Enacted

AB 1201

Textiles

Proposed

AB 1817

Cosmetics (Additional)

Proposed

AB 2771

Public Disclosure for all Consumer Products

Proposed

AB 2247

Colorado

1) Carpets and Rugs;

2) Fabric Treatments;

3) Food Packaging;

4) Children’s Products;

5) Oil and Gas Products;

6) Cookware – certain labelling requirements;

7) Cosmetics;

8) Indoor and Outdoor Textile Furnishings; and

9) Indoor and Outdoor Upholstered Furniture

 

Enacted

HB22-1345

Connecticut

Food Packaging

Enacted

SB 837

Fish Consumption

Advisory

The Connecticut Department of Energy and Environmental Protection has issued an Advisory for fish consumption in numerous locations

Georgia

1) Food Packaging; and

2) Children’s Products

Proposed

HB 1629

Hawaii

Food Packaging

Enacted

HB 1644

Recycling

Proposed

HB 1646

Indiana

Fish Consumption

Advisory

Three state agencies have issued limitations for fish consumption from rivers, streams, and lakes for various contaminants, including PFOS substances

Iowa

Food Packaging

Proposed

HF 2063 and SF 19

Furniture

Proposed

HF 2063

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.1731-1738

Pesticides

Enacted

LD 264 and LD 2019

 

Carpets, Rugs, and Fabric Treatments

Enacted

38 M.S.R.A. 16 §1614

Prohibiting PFAS in all products by 2030 and reporting requirements

Enacted

38 M.S.R.A. 16 §1614

Fish Consumption

Advisory

Remedial Action Guidelines for Certain Types of Fish (pg. 66) and the Department of Inland Fisheries and Wildlife Fish Consumption Advisory

Deer Restrictions

Advisory

One “do not eat” restriction has been issued for a certain five-mile area

Maryland

Cosmetics

Enacted

HB 643

1) Food Packaging; and

2) Rugs and Carpets

Enacted

SB 273

Fish Consumption

Advisory

The Maryland Department of the Environment has issued limitations for fish consumption in one creek for PFOS substances

Pesticides

Proposed

HB 570

Recycling

Proposed

HB 700

Massachusetts

Fish Consumption

Advisory

The Massachusetts Department of the Environment has issued limitations for fish consumption in five ponds

Food Packaging

Proposed

S 2893 and H 4820

Mosquito Management

Proposed

S 556

Various Consumer Products:

1) Child Passenger Restraints;

2) Cookware;

3) Fabric Treatments;

4) Personal Care Products;

5) Rugs and Carpets;

6) Upholstered Furniture; and

7) Children’s Products

Proposed

H 4818

Michigan

Fish Consumption

Advisory

The Michigan Department of Health and Human Services has issued limitations for fish consumption depending on the specific location

Deer Restrictions

Advisory

One “do not eat” restriction has been issued for a certain three-mile area

Labeling of Consumer Products containing PFAS Substances

Proposed

SB 0217

Food Packaging

Proposed

HB 5250

Minnesota

Food Packaging

Enacted

 Minn. Stat. § 325F.075

Fish Consumption

Advisory

The Minnesota Department of Health has issued limitations for fish consumption from certain bodies of water

Food Packaging (Additional)

Proposed

SF 70, HF 79, and SF 373

Composting

Proposed

SF 148 and HF 630

Prohibit PFAS substances in Cannabis Packaging

Proposed

HF 600

Cookware

Proposed

HF 2907

Cosmetics

Proposed

HF 2906

Ski Wax

Proposed

HF 2952

Disclosure of Consumer Products containing PFAS Substances

Proposed

HF 3075

Clothing and Apparel

Proposed

HF 3076

Children’s Products

Proposed

HF 3571

Carpets and Textiles

Proposed

HF 3180

PFAS funding, PFAS disclosures or notifications, and PFAS in the following products:

1) Carpets and Rugs;

2) Fabric Treatments;

3) Upholstered Furniture;

4) Textile Furnishings;

5)  Cookware;

6)  Cosmetics; and

7)  Ski Wax

Proposed

HF 4492

New Hampshire

Fish Consumption

Advisory

The New Hampshire Department of Environmental Services has issued limitations for fish consumption from five lakes

1) Disclosure of Consumer Products containing PFAS Substances;

2)  Carpets, Rugs, and Fabric Treatments; and

3) Prohibiting PFAS in All Products by 2030

Proposed

HB 1589

New Jersey

Fish Consumption

Advisory

The New Jersey Department of Environmental Protection has issued limits for fish consumption the high risk and general populations (See pg. 9)

Recycling

Proposed

A 1554

New York

Children’s Products

Enacted

S 501B

Food Packaging

Enacted

N.Y. Environmental Conservation Law § 37-0209  

Fish Consumption

Advisory

The New York State Department of Health has issued limitations for fish consumption from multiple waterways in one region

Carpets

Proposed

S 5027

Apparel

Proposed

S 6291

General Packaging

Proposed

A 10185

Anti-Fogging Sprays and Wipes

Proposed

S 8188

Cosmetics/Personal Care Products

Proposed

S 8364

Prevent Incineration of PFAS Substances

Proposed

A 10081

Feminine Hygiene Products

Proposed

S 9379

Prohibiting PFAS in the following products:

1) Cleaning Products;

2) Air Care Products;

3) Automotive Products;

4) Cookware;

5) Fabric Treatments;

6) Rugs;

7) Ski Wax;

8) Textiles and Textile Articles;

9) Outdoor Apparel;

10) Architectural Paints;

11) Personal Protective Equipment;

12) Polishes or Floor Products;

Proposed

A 10620

Prohibiting PFAS in All Products by 2030 and PFAS in the following products:

1) Carpets and Rugs;

2) Cookware;

3) Cosmetics;

4) Fabric Treatments; and

5) Personal Care Products

Proposed

A 8491

North Carolina

Use and Manufacturing

Proposed

S 638

General Packaging

Proposed

HB 1113

Oregon

Children’s Products

Enacted

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

Fish Consumption

Advisory

The Oregon Health Authority has issued guidelines recommending limitations for fish consumption depending on the specific location because of various contaminants, including PFOS substances

Pennsylvania

Food Packaging

Proposed

HB 1965

Rhode Island

Food Packaging

Enacted

S 2044

Food Packaging and Warning Labels for Clothing or Carpeting

Proposed

S 2049

Various Consumer Products:

1) Rugs and Carpets;

2) Fabric Treatments;

3) Upholstered Furniture;

4) Textiles;

5) Apparel;

6) Cosmetics;

7) Children’s Products; and

8) Cookware

Proposed

H 7436

Vermont

Children’s Products

Enacted

18 V.S.A. 1773

Food Packaging

Enacted

18 V.S.A. 1672

Rugs, Carpets, and Aftermarket Stain and Water Resistant Treatments

Enacted

18 V.S.A. 1682

Ski Wax

Enacted

18 V.S.A. 1692

Labeling for Certain Consumer Products

Proposed

H 27

1) Prohibiting PFAS in All Products by 2030; and

2) Cookware and Utensils

Proposed

H 650

Cosmetics

Proposed

H 677

1) Cosmetics; and

2) Athletic Turf Fields

Proposed

S 267

Prohibit Use of PFAS Products Sold in Vermont

Proposed

H 694

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

Regulate PFAS Consumer Products identified in the Chemical Action Plan

Enacted

HB 1694 and the 2021 Washington Chemical Action Plan

Cosmetics

Proposed

SB 5480 and HB 1853

Wisconsin

Fish Consumption

Advisory

The Wisconsin Department of Natural Resources has issued limitations for fish consumption from numerous creeks and lakes

Deer Consumption

Advisory

Two agencies issued a “do not eat” deer liver restriction for a certain five-mile area

Food Packaging

Proposed

SB 361

 

No PFAS consumer product regulations (as of the date of publication):  Arizona, Arkansas, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming

II. 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.  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.

For more information on PFAS chemicals, and the regulatory and litigation risks that they pose, please visit our PFAS webpage.  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, John Kindschuh, Emma Cormier, or any other member of our PFAS team at Bryan Cave Leighton Paisner LLP.

Related Practice Areas

  • Environment

  • PFAS Team

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