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 impacted.

PFAS is a family of chemicals comprised of over 4,500 compounds, and 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 fish.

Several states that have enacted consumer product regulations are doing so because the federal government has not. As shown below, the states that have restricted the products containing PFAS have focused on the following product sectors: children’s products; food packaging; firefighting foam; personal protective equipment for firefighters (“PPE”); the consumption of fish; and a range of other products including pet products, manufacturing products such as textiles and rugs, and personal care products.

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

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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 September 1, 2019.