PFAS Consumer Products Regulations

This blog was originally published in October 2020. Visit our up-to-date blog on state-by-state regulations for PFAS in consumer products >

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, or will be impacted.

PFAS Background

PFAS is a family of chemicals comprised of over 5,000 compounds. 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 deer meat and fish tissue.

State regulations of PFAS in consumer products have focused on the following product sectors:

• Children’s products
• Food packaging
• Firefighting foam
• Personal protective equipment for firefighters (“PPE”)
• The consumption of fish tissue and deer meat
• A range of other products including pet products, manufacturing products such as textiles and rugs, and cosmetics.

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., Connecticut or New Jersey, both proposed). For the purposes of this Alert, we simply note whether or not a state has laws or regulations regarding a specific product category, but we do not compare the differences between the various regulations. However, BCLP would be happy to discuss the details of the different state regulations if you have specific questions.

No Regulations: Arkansas, Florida, Hawaii, Idaho, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.

Conclusion

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 October 12, 2020.

If you believe that you may be impacted by an enacted or proposed regulation, or if you have a question about a PFAS consumer product regulation in a specific jurisdiction, please contact Tom Lee or John Kindschuh at Bryan Cave Leighton Paisner LLP.

1. Certain legislators designated 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 to children’s products), such as water-resistant clothing.   Manufacturers selling priority chemicals in an amount greater than in de minimis quantities must provide notification to the Maine Dept. of the Environment.

2. PFOS, PFOA, PFNA, PFHxS, PFHpA, and PFBS are proposed to join a list of 77 chemicals identified by the NY Department of Environmental Protection (Laws of New York, Sec. 37-0905) that pose a concern in drinking water, pharmaceutical and personal care products, and other household items.