PFAS Update: Current State-by-State Consumer Products Regulations
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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 March 21, 2022, 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 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 bill still needs to be approved by the Senate, 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, carpets, or other fabrics;
- Water resistant clothing (e.g., durable water repellent clothing);
- Cleaning products;
- Personal care products (e.g., shampoo, dental floss);
- 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 thus far, 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 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 |
California Proposition 65: All consumer products sold to California consumers may require warnings if these products contain PFOA, PFOS, and PFNA amounts above safe harbor levels |
Enacted |
|
Cosmetics |
Enacted |
||
Rugs and Carpets |
Enacted |
||
Cookware |
Enacted |
||
Children’s Products |
Enacted |
||
Food Packaging |
Enacted |
||
Recycling |
Enacted |
||
Composting |
Enacted |
||
Textiles |
Proposed |
||
Cosmetics (Additional) |
Proposed |
||
Public Disclosure for all Consumer Products |
Proposed |
||
Connecticut |
Food Packaging |
Enacted |
|
Fish Consumption |
Advisory |
Two agencies have issued a Health Consultation for fish consumption from one region |
|
Hawaii |
Food Packaging |
Proposed |
|
Recycling |
Proposed |
||
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 |
|
Maine |
PFOS as a “Priority Chemical” in Children’s Products |
Enacted |
|
Food Packaging |
Enacted |
||
Pesticides |
Enacted and Proposed |
LD 264 (Enacted) and LD 2019 (Proposed) |
|
Carpets, Rugs, and Fabric Treatments |
Enacted |
||
Prohibiting PFAS in all products by 2030 and reporting requirements |
Enacted |
||
Fish Consumption |
Advisory |
Remedial Action Guidelines for Certain Types of Fish (pg. 66) |
|
Maryland |
Cosmetics |
Enacted |
|
Fish Consumption |
Advisory |
The Maryland Department of the Environment has issued limitations for fish consumption in one creek for PFOS substances |
|
Pesticides |
Proposed |
||
Recycling |
Proposed |
||
Food Packaging |
Proposed |
||
Rugs and Carpets |
Proposed |
||
Massachusetts |
Fish Consumption |
Advisory |
The Massachusetts Department of the Environment has issued limitations for fish consumption in five ponds |
Food Packaging |
Proposed |
||
Mosquito Management |
Proposed |
||
Various Consumer Products: (1) child passenger restraints; (2) cookware; (3) fabric treatments; (4) personal care products; (5) rugs and carpets; and (6) upholstered furniture |
Proposed |
||
Michigan |
Fish Consumption |
Advisory |
The Michigan Department of the Environment 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 five-mile area |
|
Labeling of Consumer Products containing PFAS Substances |
Proposed |
||
Food Packaging |
Proposed |
||
Minnesota |
Food Packaging |
Enacted |
|
Fish Consumption |
Advisory |
The Minnesota Department of Health has issued limitations for fish consumption from certain bodies of water |
|
Food Packaging |
Proposed |
||
Composting |
Proposed |
||
Prohibit PFAS substances in Cannabis Packaging |
Proposed |
||
Cookware |
Proposed |
||
Cosmetics |
Proposed |
||
Ski Wax |
Proposed |
||
Disclosure of Consumer Products containing PFAS Substances |
Proposed |
||
Clothing and Apparel |
Proposed |
||
Children’s Products |
Proposed |
||
Carpets and Textiles |
Proposed |
||
New Hampshire |
Fish Consumption |
Advisory |
The New Hampshire Department of Environmental Services has issued limitations for fish consumption from five lakes |
Disclosure of Consumer Products containing PFAS Substances |
Proposed |
||
Carpets, Rugs, and Fabric Treatments |
Proposed |
||
Prohibiting PFAS in All Products by 2030 |
Proposed |
||
Labeling of Consumer Products containing PFAS Substances |
Proposed |
||
New Jersey |
Fish Consumption |
Advisory |
The New Jersey Department of Environmental Protection has issued limits for fish consumption for the high risk and general population (pg. 20) |
Recycling |
Proposed |
||
New York |
Children’s Products |
Enacted |
|
Food Packaging |
Enacted |
||
Fish Consumption |
Advisory |
The New York State Department of Health has issued limitations for fish consumption from certain waterways in one region |
|
Carpets |
Proposed |
||
Apparel |
Proposed |
||
General Packaging |
Proposed |
||
Anti-Fogging Sprays and Wipes |
Proposed |
||
Cosmetics |
Proposed |
||
Various Consumer Products: (1) Carpets and Rugs; (2) Cookware; (3) Cosmetics; (4) Fabric Treatment; and (5) Personal Care Products
|
Proposed |
||
Prohibiting PFAS in All Products by 2030
|
Proposed |
||
North Carolina |
Use and Manufacturing |
Proposed |
|
Oregon |
Children’s Products |
Enacted |
|
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 |
|
Rhode Island |
Food Packaging |
Proposed |
|
Warning Label for Clothing or Carpeting |
Proposed |
||
Various Consumer Products: (1) Rugs and Carpets; (2) Fabric Treatments, Upholstered Furniture, and Textile Furnishings; (3) Apparel; (4) Cosmetics; (5) Children’s Products; and (6) Cookware
|
Proposed |
||
Vermont |
Children’s Products |
Enacted |
|
Food Packaging |
Enacted |
||
Rugs, Carpets, and Certain Stain-Resistant Treatments |
Enacted |
||
Ski Wax |
Enacted |
||
Labeling for Various Consumer Products |
Proposed |
||
Prohibiting PFAS in All Products by 2030
|
Proposed |
||
Cookware and Utensils |
Proposed |
||
Cosmetics |
Proposed |
||
Prohibit Use of PFAS Products Sold in Vermont
|
Proposed |
||
Washington |
Food Packaging |
Enacted |
|
Children’s Products |
Enacted |
||
Pollution Prevention for Our Future Act, identifying various “priority” consumer products using PFAS substances |
Enacted |
||
Cosmetics |
Proposed |
||
Wisconsin |
Fish Consumption |
Advisory |
The Wisconsin Department of Natural Resources has issued limitations for fish consumption from numerous creeks and lakes |
Deer Consumption |
Advisory |
Issued a “do not eat” deer liver restriction for a certain five-mile area |
No Regulations: Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, 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
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, Elyse Voyen, or any other member of our PFAS team at Bryan Cave Leighton Paisner LLP.
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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.