United States: PFAS Update: Current State-By-State Consumer Products Regulations

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. Below is an overview of enacted and proposed state laws and regulations as of August 10, 2021, to assist you in investigating whether your products may be impacted.

While this article focuses on state laws and regulations, we note that the House of Representatives recently passed the PFAS Action Act of 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 is now being 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 5,000 compounds.  According to the Agency for Toxic Substances and Disease Registry ("ATSDR"), PFAS have been reported in a variety of 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 studies have also shown that certain PFAS chemicals accumulate in humans and animals, including deer meat and fish tissue.

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, but these categories are not exclusive:

• Food Packaging;
• Personal Care Products;
• Children's Products;
• Use and Manufacturing;
• Textiles, Fabrics, Carpets or Rugs, and Upholstery; and
• The Consumption of Fish Tissue and Deer Meat.

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.

No Regulations:  Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming

Conclusion

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, and 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.