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.
While this article focuses on state laws and regulations, we note that the House of Representatives passed the PFAS Action Act of 2021 on July 21, 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 has been 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 8,000 compounds, and it may be significantly higher considering how a PFAS substance is defined. According to the Agency for Toxic Substances and Disease Registry (“ATSDR”), PFAS have been reported in certain 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 sources, such as the United States Environmental Protection Agency (“EPA”), also states that certain PFAS chemicals accumulate both in the human body and animals since PFAS can be ingested through water and food. Accordingly, certain states have enacted health advisories limiting the consumption of deer meat and fish tissue.
I. 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 thus far, but these categories are not exclusive:
- Food Packaging;
- Cosmetics or Personal Care Products;
- Children’s Products;
- Textiles, Fabrics, Carpets or Rugs, and Upholstery; and
- The Consumption of Fish Tissue and Deer Meat.
Below is an overview of enacted and proposed state laws and regulations as of July 26, 2022, to assist you in investigating whether your products may be impacted.
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.
The Alabama Department of Health has issued limitations for fish consumption from one reservoir and two creeks
Proposition 65: All consumer products sold to California consumers may require warnings if these products contain PFOA, PFOS and PFOS salts and transformation and degradation precursors, and PFNA above safe harbor levels
4) Children’s Products;
6) Cookware – certain labelling requirements;
The Connecticut Department of Energy and Environmental Protection has issued an Advisory for fish consumption in numerous locations
Three state agencies have issued limitations for fish consumption from rivers, streams, and lakes for various contaminants, including PFOS substances
6) Upholstered Furniture; and
The Michigan Department of Health and Human Services has issued limitations for fish consumption depending on the specific location
3) Upholstered Furniture;
4) Textile Furnishings;
6) Cosmetics; and
The New Jersey Department of Environmental Protection has issued limits for fish consumption the high risk and general populations (See pg. 9)
The New York State Department of Health has issued limitations for fish consumption from multiple waterways in one region
10) Architectural Paints;
Prohibiting PFAS in All Products by 2030 and PFAS in the following products:
The Oregon Health Authority has issued guidelines recommending limitations for fish consumption depending on the specific location because of various contaminants, including PFOS substances
3) Upholstered Furniture;
Pollution Prevention for Our Future Act, identifying various “priority” consumer products using PFAS substances
No PFAS consumer product regulations (as of the date of publication): Arizona, Arkansas, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming
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. 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.
For more information on PFAS chemicals, and the regulatory and litigation risks that they pose, please visit our PFAS webpage. 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, John Kindschuh, Emma Cormier, or any other member of our PFAS team at Bryan Cave Leighton Paisner LLP.
This document provides a general summary and is for information/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Specific legal advice should always be sought before taking or refraining from taking any action.