In the absence of comprehensive federal regulation of PFAS in food packaging, states are dishing out their own laws.  Thus far, 13 (thirteen) states have enacted laws addressing PFAS substances in food containers and packaging materials (“Food Packaging”), and there are 15 (fifteen) proposed bills that are currently pending in various states.  These laws are intended to address concerns that storing food in Food Packaging that contains PFAS compounds may result in increased ingestion of those PFAS substances.  Related to food packaging, a growing number of states are enacting or proposing general bills involving the recyclability of food or beverage packaging, but this client alert does not specifically address those requirements as these measures do not exclusively involve PFAS substances. According to the United States Environmental Protection Agency (“EPA”), commonly cited examples of Food Packaging that have historically contained PFAS substances include “grease-resistant paper, fast food containers/wrappers, microwave popcorn bags, pizza boxes, and candy wrappers.”

PFAS in Children’s Products is a major focus for state regulators across the country, prompting some of the most stringent PFAS restrictions in consumer products.  Thus far, eleven (11) states have enacted regulations concerning PFAS substances in Children’s or Juvenile Products (“Children’s Products”).  Six (6) additional states have proposed Children’s Products regulations, and many of these are expected to continue to move through the legislative process in future months.  There are a number of key features that are generally consistent across the state laws: “Juvenile products” are generally defined as products that are intended for use by children 12 years old or younger. The prohibitions apply to “intentionally added” PFAS, which generally are PFAS added to a product to create a specific effect in the finished product. The compliance timelines are much shorter than the timelines for other types of consumer products that are being regulated for the presence of intentionally added PFAS. Some, but not all, of the laws exempt internal components of the product that are not accessible during foreseeable “use and abuse” of the product. Perhaps the biggest challenge posed by these laws is that unlike other PFAS laws which apply to a specific industry category (e.g. cookware, cosmetics, apparel), they apply across all consumer product categories, making them more difficult for impacted businesses to track. Notably, California recently enacted AB 347, which, among other things, changed the definition of “juvenile products” to eliminate the “including but not limited to” language and thereby limited the scope of products that are subject to restrictions.  Accordingly, BCLP identifies the specific definitions of “children’s products” or “juvenile products” in this document to best assist you.

The regulation of per- and polyfluoroalkyl substances (“PFAS”) in drinking water remains one of the primary focuses for legislatures and agencies at both the state and federal levels. In April 2024, the United States Environmental Protection Agency (“EPA”) issued Maximum Contaminant Levels (“MCLs”) and Maximum Concentration Level Goals (“MCLGs”) for certain PFAS, establishing limits as low as 4 parts per trillion (“ppt”). Many states have already regulated PFAS compounds in drinking water but have done so in a variety of different ways, and at different levels. The result is a patchwork of regulations and standards which presents significant operational and compliance challenges to impacted drinking water systems. This client alert surveys the the MCLs, as well as guidance and notification levels, for PFAS compounds in drinking water across the United States.

The UK position on PFAS is developing post-Brexit via UK REACH and a regulatory management options analysis. The EU position on PFAS is developing via EU REACH (with several significant restriction processes underway). The US position on PFAS is developing via extensive and ongoing regulation in the US at both the state and federal levels.

In the absence of comprehensive federal regulation of PFAS in cookware, states are enacting and proposing their own laws.  Thus far, eight (8) states have enacted laws addressing PFAS substances in cookware and bakeware (“Cookware”), and seven (7) states introduced bills that are currently pending.

Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by laws regulating the presence of per- and polyfluoroalkyl substances (“PFAS”) in their products. This area is rapidly developing as states create new laws or amend existing ones, and the penalties and litigation risks for non-compliance can be significant.

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.