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Colorado increases restrictions on PFAS in consumer products
May 16, 2024Summary
On May 1, 2024, Colorado governor Jared Polis signed SB-81, a bill entitled the "Perfluoroalkyl and Polyfluoroalkyl Consumer Protection Act." As discussed below, this bill expands Colorado’s existing restrictions on the use of intentionally added PFAS in certain consumer product categories, and revamps the state’s approach to intentionally added PFAS in cookware. The new Colorado law is similar to Maine’s recent legislation which transitioned away from disclosures and towards PFAS prohibitions in specific product categories.
Elimination of Intentionally Added PFAS in Specific Product Categories
Beginning in two to four years, Colorado has prohibited “intentionally added PFAS chemicals” from several product categories. “Intentionally Added PFAS Chemicals” are defined in Colorado’s original PFAS law passed in 2022 as "PFAS chemicals that a manufacturer has intentionally added to a product and that have a functional or technical effect on the product” and also include any “intentional breakdown products” of added PFAS chemicals.
Beginning on January 1, 2026, a person shall not sell, offer for sale, or distribute in Colorado cleaning products that contain intentionally added PFAS chemicals.
Exception: Does not include cleaning products that are floor maintenance products used in hospital or medical settings. Intentionally added PFAS in these products will be prohibited on January 1, 2028.
Definitions
"Cleaning Products" means finished products used primarily for domestic, commercial, or institutional cleaning purposes, and includes air care products, automotive cleaning products, general cleaning products, and polishes or floor maintenance products.
"Automotive Cleaning Product" means a chemically formulated consumer product labeled to indicate that the purpose of the product is to maintain the appearance of a motor vehicle, including products for washing, waxing, polishing, cleaning, or treating the exterior or interior surfaces of motor vehicles, but does not include automotive paint or paint repair products.
Old law – labelling requirement
Beginning on January 1, 2024, a person shall not sell, offer for sale, or distribute in Colorado cookware that contains intentionally added PFAS chemicals in the food contact surface or handle unless both the product label and product website contain specific disclosure information. See §25-15-604 for additional details. Importantly, however, the original law did not prohibit the continued use of intentionally added PFAS in cookware, as it simply required its disclosure.
New law – formulation prohibition
Beginning on January 1, 2026, a person shall not sell, offer for sale, or distribute in Colorado cookware that contains intentionally added PFAS chemicals. The product and website labelling requirements from 2024 appear to remain in effect, so businesses in the cookware industry will now need to develop a plan for reformulation while also ensuring that they comply with the existing law.
Definitions
Old law
"Cookware" means a durable houseware product that is used in residences or kitchens to prepare, dispense, or store food or beverages, including pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils.
New law
"Cookware" does not include food equipment intended primarily for use in commercial settings, including food equipment sold to a business that has a retail food establishment license.
Beginning on January 1, 2026, a person shall not sell, offer for sale, or distribute in Colorado dental floss that contains intentionally added PFAS chemicals.
Beginning on January 1, 2026, a person shall not sell, offer for sale, or distribute in Colorado menstruation products that contain intentionally added PFAS chemicals.
Beginning on January 1, 2026, a person shall not sell, offer for sale, or distribute in Colorado ski wax that contains intentionally added PFAS chemicals.
Definition: "Ski Wax" means a lubricant applied to the bottom of snow runners, including skis and snowboards, to improve the grip or glide properties of the snow runners.
Beginning on January 1, 2026, a person shall not install artificial turf that contains intentionally added PFAS chemicals on any portion of property in Colorado.
Exception: A person may maintain artificial turf installed before January 1, 2026.
Beginning on January 1, 2028, a person shall not sell, offer for sale, or distribute in Colorado textile articles that contain intentionally added PFAS chemicals.
Definition
"Textile Article" means a textile that is primarily used in households and businesses, including accessories, apparel, backpacks, and handbags.
"Textile Article" does not include: (i) outdoor apparel for severe wet conditions; (ii) outdoor textile furnishings; (iii) outdoor upholstered furniture; and (iv) textile articles used in medical, professional, or industrial settings.
Labelling requirement
Beginning on January 1, 2025, a person shall not sell, offer for sale, or distribute in Colorado, including in an internet listing or transaction, an outdoor apparel for severe wet conditions product that contains intentionally added PFAS chemicals unless the product is accompanied by label that includes the phrase "Made with PFAS Chemicals."
Formulation prohibition
Beginning on January 1, 2028, a person shall not sell, offer for sale, or distribute in Colorado outdoor apparel for severe wet conditions that contains intentionally added PFAS chemicals.
Definitions
"Outdoor Apparel" means apparel intended primarily for use in outdoor activities, including bicycling, camping, climbing, fishing, hiking, and skiing, but does not include outdoor apparel for severe wet conditions.
"Outdoor Apparel for Severe Wet Conditions" means outdoor apparel that is: (i) an extreme and extended use product that provides protection against extended exposure to extreme rain conditions or against extended immersion in water or wet conditions, such as snow conditions, in order to protect the health and safety of the user; (ii) designed for use by outdoor sports experts; and (iii) not marketed for general consumer use.
"Outdoor Apparel for Severe Wet Conditions" includes outerwear intended for use in offshore fishing, offshore sailing, whitewater kayaking, and mountaineering, but does not include personal flotation devices made for the health and safety of the user.
Beginning on January 1, 2028, a person shall not sell, offer for sale, or distribute in Colorado certain food equipment that contains intentionally added PFAS chemicals.
Definition
Food equipment intended primarily for use in commercial settings that comes into direct contact with food.
Exceptions
There are several exceptions that apply to the product categories regulated by the new law:
- Drugs, medical devices, biologics, or diagnostics used in a medical setting or in medical applications regulated by the Food and Drug Administration (“FDA”);
- Veterinary pesticide and parasiticide products approved by the Environmental Protection Agency or the Department of Agriculture for use in animals;
- Biologics or diagnostics approved by the Department of Agriculture for use in a veterinary setting; or
- Packaging used for the products described above.
Conclusion
The law presents significant challenges to the industries impacted by the requirements that go into effect at the beginning of 2026 and 2028. Perhaps more importantly, Colorado’s new legislation signals the continued uncertainty regarding the approach that states will take to regulate PFAS in consumer products, and the importance of staying up to speed on the latest legislative developments in this space.
For more information on PFAS chemicals, and the regulatory and litigation risks that they pose, please visit our PFAS webpage. If you have a question about how to manage PFAS risk in any jurisdiction, including in Colorado, contact Tom Lee, Merrit Jones, Erin Brooks, Bryan Keyt, or any other member of our PFAS team at BCLP.
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