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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

27 CCR 27001

Cosmetics

Enacted

AB 2762

Rugs and Carpets

Enacted

Z-2020-0218-04

Cookware

Enacted

AB 1200

Children’s Products

Enacted

AB 652

Food Packaging

Enacted

AB 1200

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

Connecticut

Food Packaging

Enacted

SB 837

Fish Consumption

Advisory

Two agencies have issued a Health Consultation for fish consumption from one region

Hawaii

Food Packaging

Proposed

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

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 and Proposed

LD 264 (Enacted) and

LD 2019 (Proposed)

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

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

Food Packaging

Proposed

SB 273

Rugs and Carpets

Proposed

SB 273

Massachusetts

Fish Consumption

Advisory

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

Food Packaging

Proposed

S 1494 and H 2348

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; and

(6) upholstered furniture

Proposed

H 2350

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

SB 0217

Food Packaging

Proposed

HB 5250

Minnesota

Food Packaging

Enacted

 SF 20

Fish Consumption

Advisory

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

Food Packaging

Proposed

SF 70 and SF 373

Composting

Proposed

SF 148

Prohibit PFAS substances in Cannabis Packaging

Proposed

HF 1511

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

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

HB 1589

Carpets, Rugs, and Fabric Treatments

Proposed

HB 1589

Prohibiting PFAS in All Products by 2030

Proposed

HB 1589

Labeling of Consumer Products containing PFAS Substances

Proposed

HB 1422

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

A 1554

New York

Children’s Products

Enacted

S 501B

Food Packaging

Enacted

S 8817

Fish Consumption

Advisory

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

Carpets

Proposed

S 5027B

Apparel

Proposed

S 6291

General Packaging

Proposed

A 9008

Anti-Fogging Sprays and Wipes

Proposed

S 8188

Cosmetics

Proposed

S 8364

Various Consumer Products:

(1) Carpets and Rugs;

(2) Cookware;

(3) Cosmetics;

(4) Fabric Treatment; and

(5) Personal Care Products

 

Proposed

A 8491

Prohibiting PFAS in All Products by 2030

 

Proposed

A 8491

North Carolina

Use and Manufacturing

Proposed

S 638

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

Proposed

S 2044 and S 2049

Warning Label for Clothing or Carpeting

Proposed

S 2049

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

H 7436

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

Prohibiting PFAS in All Products by 2030

 

Proposed

H 650

Cookware and Utensils

Proposed

H 650

Cosmetics

Proposed

H 677

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

Cosmetics

Proposed

SB 5480

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.

 

Related Practices

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.