Summary

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

While this article focuses on state laws and regulations 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 Take action for additional information. )  While the Senate still needs to approve this Bill, it demonstrates that federal attention has been directed to PFAS customer products issues, and that federal action in this area is reasonably likely.

I. PFAS Background

PFAS is a family of chemicals comprised of somewhere between 5, 000-12, 000 compounds depending on the regulatory definition.   According to the Agency for Toxic Substances and Disease Registry (“ATSDR”), PFAS have been reported in certain consumer items, including the particular 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 some 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 state that will certain PFAS chemicals accumulate both in the human body and animals since PFAS could be ingested through water and food.   Accordingly, some states have enacted health advisories limiting the particular consumption associated with deer meat and fish tissue.

II.   Specific Consumer Product Regulations

States have taken many different approaches to regulating consumer products containing PFAS.   State rules of PFAS in customer products have principally focused on the following product sectors thus far, but importantly, these categories are usually not exclusive:

  • Food Packaging;
  • Cosmetics or Personal Care Items;
  • Children’s Products;
  • Textiles, Fabrics, Carpets or even Rugs, plus Upholstery; and
  • The Consumption of Fish Tissue plus Deer Meat.

Below is an overview of passed and proposed state laws and regulations as of  Dec 20, 2022 , to assist you in investigating whether your products may be impacted.

The subsequent chart identifies what specific product categories each state regulates, yet does not include the particular regulatory levels or needs to avoid confusion because the structure and limits vary widely from condition to state.

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 Va, and Wyoming.

III. Conclusion

While several states do not currently possess any adopted laws or regulations with respect in order to PFAS in consumer items, many are considering ways to address these chemical substances.   As noted above, Congress will be also contemplating regulation at a national level.   Whether or not your business is currently subject to customer product rules related to PFAS, a prudent first step in order to evaluate your own potential risk is to determine whether any of your products or even production methods contain or use these types of chemicals.

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