As the US Environmental Protection Agency (EPA) expands its regulation of per-and polyfluoroalkyl substances (PFAS), a number of states have also taken steps to regulate the use, production, and sale of products containing PFAS. PFAS are a group of synthetic chemicals with a broad range of commercial and industrial uses. Adopted and proposed state legislation may require entities that have PFAS in their products to report such contents, age-restrict the distribution of their products, or even, cease the sale of PFAS-containing products entirely.
It is critical to understanding how a state defines PFAS and whether (and how) any of the requirements apply to your product. It’s complicated: Some states are legislating PFAS as a class using a very broad definition, while others are targeting specific PFAS chemicals. Commercial and industrial producers should be aware of any new obligations that may affect their business practices.
The chart below outlines adopted and proposed regulatory efforts as of early May:
STATE LABELING REQUIREMENTS.
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State
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Regulation
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California
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Required: Labeling for all products containing the PFAS compounds PFOA, PFOS, and PFNA at levels above set limits.
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Michigan
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Proposed: Legislation requiring labeling for any product containing PFAS by January 2025.
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STATE NOTIFICATION AND REPORTING REQUIREMENTS
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State
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Regulation
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Washington
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Required: Manufacturers must submit written notice and relevant product information for PFAS-containing products.
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Maine
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Upcoming Requirement:
- As of January 2022, written notice and relevant product information for PFAS-containing products required for manufacturers that intentionally add PFAS to a product as a “currently unavoidable use.”
- Provision in law that would waive reporting requirements.
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Minnesota
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Upcoming Requirement: As of January 2022, written notice and relevant product information for PFAS-containing products required for manufacturers that intentionally add PFAS to a product as a “currently unavoidable use.”
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New York
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Requirement: Reporting where PFAS compounds are used in children’s products or products marketed towards children.
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Oregon
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Requirement:
- Reporting where PFAS compounds are used in children’s products or products marketed towards children.
- Product reports on PFOS and PFOA use every two years
Proposed: Phase out of PFAS compounds used in children’s products or products marketed towards children unless an exemption is granted.
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Vermont
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Requirement:
- Reporting where PFAS compounds are used in children’s products or products marketed towards children.
- List of PFAS compounds of high concern to children expanded to include PFHxS, PFHpA and PFNA.
- Exemption of notice requirement for companies that have implemented a control program and have attempted to minimize PFAS contamination in children’s products
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Connecticut
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Proposed:
- Legislation requiring that manufacturers report products containing PFAS.
- A penalty system where failure to report may result in product bans.
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New Jersey
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Proposed:
- Legislation requiring that manufacturers report products containing PFAS.
Note: If this legislation is passed, reporting requirements would go into effect one year after passage.
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Wisconsin
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Proposed:
- Legislation requiring that manufacturers report products containing PFAS.
Note: If this legislation is passed, Wisconsin proposes an effective reporting date of January 2028.
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LIMITED BANS ON PFAS-CONTAINING PRODUCTS
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State
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Regulation
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California
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Requirement: Ban of intentionally added PFAS in products intended for children or marketed to children.
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Colorado
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Requirement:
- Ban of intentionally added PFAS in products intended for children or marketed to children.
- Ban of the sale and distribution of other product categories, such as carpeting, food packaging and oil and gas products if they contain PFAS compounds.
Proposed : Legislation pending the Governor’s signature would ban other product categories including cookware, apparel, and certain cleaning products.
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Minnesota
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Requirement:
- Ban of certain PFAS-containing products.
Upcoming Requirement: In January 2025, ban of intentionally added PFAS in children’s products .
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New York
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Requirement: Ban of certain PFAS-containing products.
Upcoming Requirement: In January 2026, ban of PFAS in products designed for children and other consumer products.
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Washington
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Requirement: Ban of certain PFAS-containing products.
Upcoming Requirement: In January 2025, ban on specific categories of consumer products containing PFAS.
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Massachusetts
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Proposed:
- Legislation to ban certain categories of products containing PFAS from sale or distribution and ban the sale of all children’s products that contain PFAS.
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New Hampshire
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Proposed:
- Legislation to ban certain categories of products containing PFAS from sale or distribution.
- The implementation of a fee program to encourage phase-out and later a total ban of PFAS in all product packaging.
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Rhode Island
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Proposed:
- Legislation to ban certain categories of products containing PFAS from sale or distribution.
- Legislation to ban the sale of children’s products containing PFAS as of January 2027.
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Wisconsin
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Proposed:
- Legislation which would ban certain categories of products containing PFAS from sale or distribution.
- Ban on the use of PFAS in children’s products with an effective date of January 2028.
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TOTAL BANS ON PFAS-CONTAINING PRODUCTS
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State
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Regulation
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Maine
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Requirement:
- By January 1, 2026, certain products such as, cleaning products, cookware, cosmetic products, dental floss, juvenile products, menstruation products, textile articles, ski wax, and upholstered furniture can no longer be sold.
- By January 1, 2029, certain apparel with intentionally added PFAS will also be phased out from sale.
- Total ban on PFAS products extended from January 1, 2025 to January 1, 2032.
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Massachusetts
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Proposed:
- Legislation to ban the use of PFAS in all consumer products as of January 2027
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Tennessee
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Proposed:
- Legislation to ban the use of PFAS in all consumer products, with exemption for certain products.
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Wisconsin
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Proposed:
- Legislation to ban products containing PFAS, with limited exceptions, in 2034.
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As state requirements and proposals continue to evolve, it is important for owners and operators in affected industries to proactively monitor the status of developments in states where they operate. Compliance in this area is complex. Many of the bans or reporting requirements also apply to e-commerce. And disposal of any product containing PFAS warrants careful consideration.
This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author(s). This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.