BCLPemerging.com
PFAS Update: Current State-by-State Consumer Products Regulations
Aug 13, 2021This blog was originally published in August 2021. 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 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 August 10, 2021, 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 recently passed the PFAS Action Act of 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 Senate still needs to approve this bill, 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, or other fabrics;
- Water resistant clothing such as “durable water repellent clothing;”
- Cleaning products;
- Personal care products (e.g., shampoo, dental floss) and 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, 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 Dept. of Health restricts the number of fish people should consume from one reservoir and two creeks |
Alaska | Fish Consumption | Advisory | The Alaska Dept. of Health and Social Services prohibits all fish consumption from Kimberly Lake |
Arizona | Food Packaging | Proposed | HB 2095 |
California | All consumer products sold to California consumers may require warnings if these products contain PFOA or PFOS above safe harbor levels (California Proposition 65) | Enacted | 27 CCR 27001 |
Cosmetics | Enacted | AB 2762 and AB 495 | |
Rugs and Carpets | Enacted | Z-2020-0218-04 | |
Cookware | Proposed | AB 1200 | |
Children’s Products | Proposed | AB 652 | |
Food Packaging | Proposed | AB 1200 | |
Connecticut | Food Packaging | Enacted | SB 837 |
Consumer Packaging | Proposed | SB 926 | |
Consumer Products (general) | Proposed | SB 404 | |
Food Packaging | Proposed | SB 111 | |
Water Safety and Bottled Water Restrictions | Proposed | HB 6615 | |
Iowa | Food Packaging | Proposed | SF 19 and HF 293 (more inclusive bill) |
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. 17-31-1731 et seq. | |
Aerial Application of Pesticides | Enacted | LD 264 | |
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 |
Rugs or Carpets | Proposed | HB 22 | |
Food Packaging | Proposed | HB 22 | |
Massachusetts | Food Packaging | Proposed | S 1494 |
Mosquito Management | Proposed | S 556 | |
Miscellaneous 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 Dept. of the Env. advises that people should not eat certain types of fish and limit the fish consumption depending on the specific location |
Deer Restrictions | Advisory | One “do not eat” restriction within a certain five-mile area | |
Labeling of Consumer Products | Proposed | SB 0217 | |
Food Packaging | Proposed | HB 5250 and SB591 | |
Minnesota | Food Packaging | Enacted | SF 20 |
Fish Consumption | Advisory | The Minnesota Dept. of Health recommends not eating fish from one lake and consuming limited numbers of certain kinds of fish depending upon the specific location | |
Food Packaging | Proposed | SF 70 and SF 373 | |
Composting | Proposed | SF 148 | |
Discretion to Prohibit PFAS in Cannabis Packaging | Proposed | HF 600 | |
New Jersey | Fish Consumption | Advisory | The New Jersey Dept. of Env. Protection has issued limits regarding fish consumption for the high risk and general populations (pg. 20) |
New York | Children’s Products | Enacted | S 501B |
Food Packaging | Enacted | S 8817 | |
Carpets | Proposed | S 5027A | |
Apparel | Proposed | S 6291 | |
North Carolina | Use and Manufacturing | Proposed | S 638 |
Oregon | Children’s Products | Enacted | 431A.250 et seq. |
Food Packaging – Plastic Utensils | Proposed | HB 2365 | |
Carpets | Proposed | HB 3271 | |
Rhode Island | Food Packaging | Proposed | SB 110 |
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 | |
Virginia | Food Packaging | Proposed | HB 1712 |
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 Dept. of Natural Resources advises that people should not consume certain types of fish in numerous creeks and lakes |
Deer Consumption | Advisory | Issued a “do not eat” deer liver restriction from a certain five-mile area |
No Regulations: Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, 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, and 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. 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 or John Kindschuh at Bryan Cave Leighton Paisner LLP.
Related Practice Areas
-
PFAS Team