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 impacted.
PFAS is a family of chemicals comprised of over 4,500 compounds, and 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 fish.
Several states that have enacted consumer product regulations are doing so because the federal government has not. As shown below, the states that have restricted the products containing PFAS have focused on the following product sectors: children’s products; food packaging; firefighting foam; personal protective equipment for firefighters (“PPE”); the consumption of fish; and a range of other products including pet products, manufacturing products such as textiles and rugs, and personal care products.
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., New Jersey and Vermont). For the purposes of this Alert, we simply note whether or not a state has laws or regulations regarding a specific product category, but do not compare the differences between the various regulations. However, we would be happy to discuss the details of the different state regulations if you have specific questions.
State
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Product Categories
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RegulatoryStatus
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Citation(s)
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Alabama
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Fish Consumption
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Enacted
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Advisory: Created by the Alabama Dept. of Health to generally restrict the number of fish people should eat
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Alaska
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Fish Consumption
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Enacted
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Advisory: A notice from the Alaska Dept. of Health and Social Services restricting any fish consumption from a specific lake
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Arizona
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Firefighting Foam
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Enacted
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Ariz. Rev. Stat. 36-1696
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California
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All consumer products may require warnings if they contain PFOA or PFOS (California Proposition 65)
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Enacted
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27 CCR 27001
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Colorado
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Firefighting Foam and PPE
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Enacted
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CRS 24-33.5-1234
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Connecticut
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Firefighting Foam and Food Packaging
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Proposed
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H.B. 5910
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Georgia
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Firefighting Foam
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Enacted
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O.C.G.A. 25-2-41
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Iowa
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Firefighting Foam, PPE, Food Packaging, and Manufacturing certain products
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Proposed
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H.F. 775; S.F. 386
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Kentucky
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Firefighting Foam
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Enacted
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Ky. Rev. Stat. 227.395
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Maine
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PFAS as a Chemical of High Concern, Fish Consumption, and Food Packaging
Proposed: PFAS as a “Priority Chemical”[1]
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Enacted and Proposed
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38 M.S.R.A. 1693-A(1); 32 M.S.R.A 1731-1739
Fish: Advisory (Remedial Action Guidelines for certain types of fish)
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Massachusetts
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Food Packaging (2 proposed bills), PPE (2 proposed bills), and Children’s Products
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Proposed
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H.3839; S.1315; S.1400; H.3661; S.149
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Michigan
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Firefighting Foam (3 proposed bills)
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Proposed
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H.B.4389; H.B.4390; H.B.6186
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Minnesota
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Adopted: Firefighting Foam and Fish Consumption
Proposed: Firefighting Foam, Manufacturing Certain Products, and Food Packaging
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Enacted and
Proposed
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Minn. Stat. 325F.072
Fish: Advisory (the Minnesota Dept. of Health recommends eating a range of PFOS contamination for fish consumption in a week or month)
Proposed: S.F. 321; S.F. 2088
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New Hampshire
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Firefighting Foam and PPE
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Proposed
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S.B. 257
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New Jersey
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Adopted: Fish Consumption
Proposed: Food Packaging and Children’s Products
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Enacted and
Proposed
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Fish: Advisory (the New Jersey Dept. of Environmental Protection has issued limits on fish consumption for a high risk and general population)
Proposed: A.5099; S.4026
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New York
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Adopted: Firefighting Foam
Proposed: Food Packaging, Children’s Products, Personal Care Products, PPE, Firefighting Foam, Pet Products, and PFAS as an “Emerging Contaminant”[2]
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Enacted and
Proposed
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6 NYCRR 597
Proposed: A. 6296A ; S. 1646; A. 07839; S. 439; S. 2000A; S. 6077; A. 7876
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North Carolina
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Firefighting Foam
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Proposed
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H560
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Oregon
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Children’s Products
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Enacted
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Toxic Free Kids Act: 431A.250 et. al.
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Rhode Island
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Food Packaging (2 proposed bills) and Personal Care Products
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Proposed
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S.B.0218; H.B.5565; H.B.5826
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Vermont
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Adopted: Children’s Products
Proposed: Food Packaging
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Enacted and
Proposed
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Children’s Chemicals of High Concern: 18 V.S.A. 1773
Proposed: S. 101
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Virginia
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Firefighting Foam
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Enacted
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VA Code Ann. 9.1-207.1
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Washington
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Adopted: Firefighting Foam, PPE, Food Packaging, and Children’s Products
Proposed: Firefighting Foam[3]
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Enacted and Proposed
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Wash. Rev. Code Ann. 70.75A.010-.30 and 70.95G.070
Proposed: H.B. 1143
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Wisconsin
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Adopted: Fish Consumption
Proposed: Firefighting Foam
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Enacted and Proposed
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Fish: Advisory (the Wisconsin Dept. of Natural Resources advises that people do not eat certain types of fish depending on the location)
Proposed: L.R.B. 3306
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No Regulation
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Arkansas, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming.
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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 September 1, 2019.
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1. Certain legislators wish to designate 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 children’s products), such as water repellant clothing.
2. PFOS and PFOA are proposed to join a list of 72 chemicals identified by the NY Department of Environmental Protection that pose a concern in drinking water, pharmaceutical and personal care products, and other household items.
3. The proposed bill adds new requirements to the current statute including notification and penalty provisions.
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