PFAS Update: Current State-by-State Consumer Products 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. 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
Connecticut	Fish Consumption	Advisory	Two agencies have issued a Health Consultation for fish consumption from one region
Hawaii	Food Packaging	Proposed	HB 1644
Hawaii	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)
New Jersey	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.
Oregon	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
Wisconsin	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.

PFAS Update: Current State-by-State Consumer Products Regulations

Authors/Presenters Meet the Team

Specific Consumer Product Regulations

Conclusion

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