PFAS Consumer Products Regulations

Bryan Cave Leighton Paisner
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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 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

Product Categories

RegulatoryStatus

Citation(s)

Alabama

Fish Consumption

Enacted

Advisory:  Created by the Alabama Dept. of Health to generally restrict the number of fish people should eat

Alaska

Fish Consumption

Enacted

Advisory:  A notice from the Alaska Dept. of Health and Social Services restricting any fish consumption from a specific lake

Arizona

Firefighting Foam

Enacted

Ariz. Rev. Stat.  36-1696

California

All consumer products may require warnings if they contain PFOA or PFOS (California Proposition 65)

Enacted

27 CCR 27001

Colorado

Firefighting Foam and PPE

Enacted

CRS 24-33.5-1234

Connecticut

Firefighting Foam and Food Packaging

Proposed

H.B. 5910

Georgia

Firefighting Foam

Enacted

O.C.G.A. 25-2-41

Iowa

Firefighting Foam, PPE, Food Packaging, and Manufacturing certain products

Proposed

H.F. 775; S.F. 386

Kentucky

Firefighting Foam

Enacted

Ky. Rev. Stat. 227.395

Maine

PFAS as a Chemical of High Concern, Fish Consumption, and Food Packaging

Proposed:  PFAS as a “Priority Chemical”[1]

Enacted and Proposed

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)

Massachusetts

Food Packaging (2 proposed bills), PPE (2 proposed bills), and Children’s Products

Proposed

H.3839; S.1315; S.1400; H.3661; S.149

Michigan

Firefighting Foam (3 proposed bills)

Proposed

H.B.4389; H.B.4390; H.B.6186

Minnesota

Adopted:  Firefighting Foam and Fish Consumption

Proposed:  Firefighting Foam, Manufacturing Certain Products, and Food Packaging

Enacted  and

Proposed 

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

New Hampshire

Firefighting Foam and PPE

Proposed

S.B. 257

New Jersey

Adopted:  Fish Consumption

Proposed:  Food Packaging and Children’s Products

Enacted and

Proposed

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

New York

Adopted:  Firefighting Foam

Proposed:  Food Packaging, Children’s Products, Personal Care Products, PPE, Firefighting Foam, Pet Products, and PFAS as an “Emerging Contaminant”[2]

Enacted and

Proposed

6 NYCRR 597

Proposed:  A. 6296A ; S. 1646; A. 07839; S. 439; S. 2000A; S. 6077; A. 7876

North Carolina

Firefighting Foam

Proposed

H560

Oregon

Children’s Products

Enacted  

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

Rhode Island

Food Packaging (2 proposed bills) and Personal Care Products

Proposed

S.B.0218; H.B.5565; H.B.5826

Vermont

Adopted:  Children’s Products

Proposed:  Food Packaging

Enacted and

Proposed

Children’s Chemicals of High Concern: 18 V.S.A. 1773

Proposed:  S. 101

Virginia

Firefighting Foam

Enacted

VA Code Ann. 9.1-207.1

Washington

Adopted:  Firefighting Foam, PPE, Food Packaging, and Children’s Products

Proposed:  Firefighting Foam[3]

Enacted and Proposed

Wash. Rev. Code Ann. 70.75A.010-.30 and 70.95G.070

Proposed:  H.B. 1143

Wisconsin

Adopted:  Fish Consumption

Proposed:  Firefighting Foam

Enacted and Proposed

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

No Regulation

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.

 

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. 

____________

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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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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