New Wave of PFAS Legislation Aimed at Consumer Products

This month, California chaptered two new bills, AB 2515 and AB 347, regulating per- and polyfluoroalkyl substances (PFAS) in menstrual products and juvenile products, textile articles, and food packaging, respectively. The California laws are just the latest in a rising tide of PFAS legislation restricting the chemicals in consumer products. Nearly half of U.S. states have recently enacted or are considering such laws. Following an initial wave of state-level legislative efforts targeting the use of PFAS in firefighting foam, these current initiatives have expanded the reach to consumer product categories, such as food packaging, cookware, cosmetics, children’s products, textiles, menstrual products, and carpets and rugs.

Manufacturers, distributors, and retailers across industries are bracing to comply with the rapidly developing patchwork of laws, including by reformulating products and packaging or moving away from PFAS altogether.[1]

The following provides a look at the current landscape of laws across the U.S. restricting PFAS in consumer products.[2]

Consumer Product State Laws – Enacted and Proposed

Maine and Minnesota have been the most aggressive. Both states have passed laws that will prohibit the sale of all products containing intentionally added PFAS.[3] A growing number of states may soon follow suit. The California, Illinois, New York, Vermont, and Wisconsin legislatures have each also proposed to ban the use of PFAS in all products.

Other states are taking a more piecemeal approach, addressing the use of PFAS category-by-category. For instance, prior to proposing a ban on PFAS in all products, California enacted legislation that prohibits—or will eventually prohibit—the use of PFAS in apparel, carpets and rugs, food packaging, children’s products, and personal care products. As reflected in the list below of products covered by enacted laws, several other states have done the same, and many more such bills are pending. Other product-category-specific legislation that has been proposed includes California’s AB 2761, prohibiting the use of PFAS in plastic packaging; Illinois’s HB 1282, prohibiting the use of certain PFAS chemicals in cosmetic products; and New Jersey’s A1421, restricting PFAS in cosmetic products, carpet or fabric treatments, and food packaging.

Many of these laws have labeling and reporting requirements as well. For example, California requires cookware manufacturers to list on their label the presence of PFAS, while Connecticut requires that manufacturers of certain products, such as apparel, cleaning products, and cookware, provide a report to the Connecticut Department of Energy and Environmental Protection outlining the use and amount of PFAS in the product. And notably, the U.S. Environmental Protection Agency promulgated retroactive reporting and recordkeeping requirements for PFAS under the Toxic Substances Control Act (TSCA).[4] Under the new TSCA requirements, any entity that manufactures or manufactured PFAS or PFAS-containing articles in any year since January 1, 2011 must report certain information to EPA regarding PFAS uses, production volumes, disposal, exposures, and hazards.[5]

Generally, state PFAS laws are enforced by a regulatory agency or the state attorney general, and penalties range from $500 to $25,000 per violation or per day. However, when California’s AB 2515 was introduced, it contained a private right of action that would have allowed private plaintiffs to enforce California’s menstrual product labeling requirements and prohibition on cosmetic products containing intentionally added PFAS. The final version of the bill passed by the legislature this summer omitted this authority, allaying concerns in the regulated community that AB 2515 would spur a cottage industry around private enforcement, like Proposition 65 has.

Heightened Regulatory Focus on PFAS

This wave of legislative action at the state level has been fueled by increasing scrutiny in recent years regarding the potential environmental and health effects of PFAS and is a response to a lack of comprehensive federal legislation. Lawsuits brought under state consumer protection statutes against manufacturers for undisclosed PFAS in their products are on the rise. While some studies have linked PFAS exposure to reproductive and developmental harm and increased risks of cancer, there remains disagreement and uncertainty about both (1) the extent to which these substances are distributed in local environments and (2) the specific danger they might pose. This disagreement is apparent in the lack of harmony across state laws and the products selected for regulation. Because there are thousands of different types of PFAS, it has been difficult to identify and understand the effects of various PFAS chemicals on humans and the environment.

Nonetheless, EPA has actively sought to address PFAS in the environment over the past few years. In 2021, EPA announced the Agency’s PFAS Strategic Roadmap that set out what EPA calls “a whole-of-agency approach to addressing PFAS.” To date, under this comprehensive approach, EPA has:

• Designated PFOA and PFOS as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act
• Issued a drinking water standard for PFAS
• Updated interim guidance on the destruction and disposal of PFAS-containing materials
• Proposed regulations that would list nine PFAS as hazardous constituents under the Resource Conversation and Recovery Act
• Added PFAS to the list of chemicals covered by the Toxics Release Inventory
• Required reporting for PFAS manufactured and used in the United States under TSCA

In the coming years, the EPA intends to take further action to better understand and regulate PFAS, including issuing new health standards and limits for PFAS, developing new methods to detect and measure PFAS, and promulgating new rules to reduce PFAS discharges into the environment.[6]

While EPA has taken action to address PFAS in the environment, the Consumer Product Safety Commission has yet to propose PFAS regulations for consumer products. In September 2023, the CPSC issued a notice to request information on PFAS “used in commerce or potentially used in consumer products, potential exposures associated with the use of PFAS in consumer products, and potential human health effects associated with exposures to PFAS from their use in consumer products.” However, to date, the CPSC has not introduced regulation regarding PFAS in consumer products.

Mitigating Risk of Enforcement

In response to heightened litigation risk and the challenge of complying with burdensome and conflicting state laws, many companies are preemptively moving away from the use of PFAS. In August 2019, DuPont announced a slate of commitments that would reduce its use of PFAS. In February 2023, REI Co-op announced that it would be phasing out the sale of products containing PFAS in its stores. Other companies have made similar commitments, including Patagonia, Inc., Starbucks Corp., and Taco Bell Corp.

Yet, for many companies, especially where PFAS is integral to product functionality or safety attributes, the move away from PFAS could take years. These companies are investing substantial resources into research and development to create or identify viable alternatives to PFAS. And even for those who have alternatives, there are other hurdles that can impede efforts to comply with new laws or mitigate litigation risk. For instance, PFAS may be added to product components along the supply chain without the company’s or product manufacturer’s knowledge or control. Likewise, there are a lack of widely available testing capabilities to detect and distinguish PFAS chemicals.

To address these hurdles, it is imperative for companies affected by PFAS consumer protection laws to develop risk mitigation strategies, enact policies, and implement controls across their supply chain. Best practices include, among other things, adding PFAS to supplier/manufacturer restricted substances lists and requiring lab testing for intentionally added PFAS on product components.

We expect to see increasingly stringent laws restricting the use of PFAS and intensified focus by the plaintiffs’ bar on civil actions as consumer awareness of PFAS in products evolves. To stay at the forefront of these developments, we actively monitor courts and legislatures for changes affecting our clients. Our collaborative teams of Environmental and Consumer Products attorneys regularly advise clients regarding consumer protection laws and are available to assist with PFAS compliance programs and strategic risk mitigation.

[1] This client alert does not cover laws that regulate only organohalogenated chemicals or other flame retardants.

[2] This map does not include laws that do not expressly regulate PFAS in consumer products, such as Nevada’s AB 97, which establishes a working group to study issues related to environmental contamination from PFAS.

[3] The prohibitions would not apply to products for which the use of PFAS is a “currently unavoidable use.” Minnesota defines this as “a use of PFAS that the [Minnesota Pollution Control Agency] has determined by rule . . . to be essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.” Min. St. § 943.

[4] 15 U.S.C. § 2601 et seq.

[5] 40 C.F.R. § 705 et seq.

[6] For a detailed discussion of EPA’s actions regarding PFAS, see EPA’s PFAS Strategic Roadmap: EPA’s Commitments to Action 2021–2024.