Perfluoroalkyl and polyfluoroalkyl substances, or PFAS, are a
group of synthetic chemicals that were first developed in the 1940s
and are now widely used in industrial, commercial, and consumer
products due to their durability and resistance to water, oil, and
heat. However, scientific studies suggest PFAS will slowly break
down over time and can build up in the bodies of humans and other
animals, causing serious health risks. As a result, numerous
countries, including the United States, Canada, and Australia, as
well as the European Union, have enacted and continue to pass laws
regulating PFAS in a wide variety of products. In addition, more
than a dozen states, including the State of New York, have also
enacted laws that regulate the use of PFAS in specific categories
of products. Moreover, even counties in some states, such as New
York, have passed ordinances regulating PFAS-containing
products.
This blog post will identify product categories in which New York
has enacted PFAS regulations and provide a general overview of
regulations for each product category. Manufacturers must know what
types of PFAS products are prohibited from sale or will soon be
banned in the State of New York.
Children's Products
Title IX of Article 37 of New York's Environmental
Conservation Law, titled "Toxic Chemicals in Children's
Products," regulates PFAS and other expressly delineated
chemicals defined as "chemicals of concern" found in
products marketed and sold to persons twelve and under.
Children's products include toys, car seats, school supplies,
personal care products, baby teething and sucking products,
products facilitating sleep, relaxation, or the feeding of a child,
novelty products, jewelry, bedding, furniture, furnishings, and
apparel. The list is non-exclusive, so manufacturers must consult
counsel to evaluate whether their products constitute a
"child's product" under the statute.
Two categories of PFAS, (1) Perfluorooctanoic acid (PFOA &
related substances) and (2) Perfluorooctyl sulphonic acid and its
salts (PFOS), have been included as "chemicals of
concern" that are regulated by Title IX.
Title IX Reporting Requirement and PFAS Prohibitions
Every manufacturer who sells or distributes a children's
product that contains "chemicals of concern" in New York
must report to the New York State Department of Environmental
Conservation (DEC). The report must identify the specific product,
the contained chemical, and the chemical's purpose. To prepare
for any further requests for information by the DEC, manufacturers
must maintain information regarding the amount of the chemical in
the product, the likelihood that the chemical will be released into
the environment during the product's life cycle, and the extent
to which product users are likely to be exposed to the chemical.
Manufacturers can, however, submit an application seeking a waiver
of reporting requirements. In deciding whether to grant a waiver,
the DEC will likely consider factors such as the availability of
substantially equivalent public information about the contained
chemical, similar waivers granted by other states, and the volume
of the contained chemical at issue.
Children's products that contain some types of non-PFAS
"chemicals of concern" that are intentionally added, such
as tris (1, 3 dichloro-2-propyl) phosphate (TDCPP or TDCIPP),
benzene, and asbestos, are currently prohibited from distribution,
sale, or offer for sale, with a few exceptions. However, Title IX
does not exclude the possibility that additional "chemicals of
concern," including but not limited to PFOA or PFOS, could be
banned for distribution, sale, or offer for sale. The
Children's Product Safety Council, established by Title IX,
could recommend prohibiting additional types of "chemicals of
concern." Therefore, manufacturers must monitor whether Title
IX will be revised to ban more types of "chemicals of
concern."
Pursuant to Title IX, the manufacturers who sell or distribute a
children's product that contains "chemicals of
concern" must also notify the persons that offer such
children's product for sale or distribution in the State of New
York.
Finally, the statute provides that the DEC can impose regulations
to ensure enforcement of the statute's provisions.
Firefighting Activities
Chapter 20, Article 26 of New York's General Business Law restricts the sale and use of firefighting equipment that contains PFAS chemicals. Additional PFAS provisions in Article 26 specify that:
- No foams designed to prevent or extinguish ignitable liquid fires, also known as aqueous film-forming foam (AFFF) or Class B firefighting foam, that contain PFAS can be used for training purposes.
- In the State of New York, if these foams contain intentionally added PFAS chemicals, they cannot be manufactured, knowingly sold, offered for sale, distributed for sale, or distributed for use. Exemptions apply only in limited circumstances, such as approval by the Office of Fire Prevention and Control for suppressing or preventing an ignitable liquid fire or adherence to federal law or regulations.
- A manufacturer or seller of firefighting personal protective equipment containing PFAS chemicals must also provide a written notice to the purchaser at the time of sale. The written notice must include a statement acknowledging the addition of PFAS chemicals and the reason for their inclusion.
Each violation of the above PFAS regulations will result in a civil penalty not to exceed $5,000 for each violation in the case of a first offense. However, repeat violators will be subject to a civil penalty not to exceed $10,000 for each repeat offense.
Apparel
New York's regulation of apparel manufactured with intentionally added PFAS is the latest in PFAS regulations on products. Taking effect on January 1, 2025, the subject regulation is contained in Section 21, Title I of Article 37 of New York's Environmental Conservation Law. The scope of regulation will be enlarged over time, but the upcoming iteration of the regulation specifies that:
- After January 1, 2025, no person shall sell or offer for sale in the State of New York any new, not previously used, apparel containing PFAS as intentionally added chemicals.
- Commencing no later than January 1, 2027, no person shall sell or offer for sale in the State of New York any new, not previously used apparel containing PFAS at or above a level determined by the DEC.
- On or after January 1, 2028, no person shall sell or offer for sale in the State of New York any new, not previously used, outdoor apparel for severe wet conditions containing PFAS: (a) at or above a level determined by DEC; or (b) as intentionally added chemicals.
Under the subject statute, apparel includes "undergarments,
shirts, pants, skirts, dresses, overalls, bodysuits, vests,
dancewear, suits, saris, scarves, tops, leggings, leisurewear,
formal wear, outdoor apparel, onesies, bibs, and diapers."
However, the statute explicitly excludes professional uniforms for
protection from health or environmental hazards, including personal
protective equipment, from regulation because they are not
considered "apparel" for regulatory purposes.
If sellers can show that they relied in good faith on a
manufacturer's written assurance that their apparel meets the
requirements of this new law, they will not be held in violation of
this PFAS ban on apparel. First-time violators of the PFAS
regulations on apparel will be liable for fines not exceeding
$1,000 for each day of the continuing violation. Second-time
violators will be liable for penalties not exceeding $2,500 for
each day of the continuing violation.
Manufacturers should expect to receive requests from vendors
certifying that their products do not contain intentionally added
PFAS or exceed thresholds for products with PFAS byproducts.
Food Packaging
Under Section 9, Title II of Article 37 of New York's
Environmental Conservation Law, no person shall distribute, sell,
or offer for sale in the State of New York food packaging
containing PFAS substances as intentionally added chemicals.
For this regulation, "intentionally added chemical" means
a chemical in a product that serves an intended function in the
product component. "Food packaging" means a package or
packaging component intended for direct food contact and is
comprised, in substantial part, of paper, paperboard, or other
materials originally derived from plant fibers.
First-time violators of the PFAS regulations on food packaging will
be liable for fines not exceeding $10,000. Second-time violators
will be liable for fines not exceeding $25,000 for each
violation.
Carpets
PFAS regulation on carpets, which is now part of Section 13,
Title XXXIII of Article 27 of New York's Environmental
Conservation Law, is not yet in effect. Still, it would help the
manufacturers to prepare in advance.
On or after December 31, 2026, no carpet sold or offered for sale
in the State of New York shall contain or be treated with PFAS
substances for any purpose. For this regulation, "carpet"
includes but is not limited to "a commercial or residential
broadloom carpet, modular carpet tiles, artificial turf, a pad or
underlayment used in conjunction with a carpet." However,
"carpet" does not include "handmade rugs, area rugs,
or mats." "PFAS substances" are "a class of
fluorinated organic chemicals containing at least one fully
fluorinated carbon atom."
Future violators of the PFAS regulations on carpets will be liable
for fines not exceeding $500 each day of the continuing
violation.
Future PFAS Regulations
New York lawmakers will likely continue to expand the scope of
PFAS regulations. In March 2023, members of the New York Senate
introduced Bill S5648C. This proposed legislation is consistent
with similar legislation in other states and Canada.
According to the amended version of Bill S5648, no person shall
sell or offer for sale in the State of New York any covered product
that contains regulated PFAS. "Covered product" will
include "textile articles, rugs, fabric treatments, cookware,
ski waxes, architectural paints, children's products, cleaning
products, anti-fogging sprays, and wipes of certain covered
products. "Regulated PFAS" means (1) intentionally added
PFAS or (2) PFAS at or above a level established by the DEC, which
is the lowest level measured in total organic fluorine that can
feasibly be achieved.
Furthermore, Bill S5648 requires manufacturers of "covered
products" to issue a certificate of compliance evidencing that
the covered products do not contain any regulated PFAS. It also
gives the DEC the authority to order manufacturers to provide
laboratory test results or notifications if it has reason to
believe that a covered product contains controlled PFAS and is
being sold in violation of PFAS regulations. However, the sale or
resale of used "covered products" that contain regulated
PFAS is not prohibited.
Bill S5648 passed the Senate in June 2024, but the state's
legislative session ended before passage in the New York State
Assembly. However, immediately after the 2025-26 legislative
session commenced, New York's state senators introduced an
identical bill, renamed Bill S187.
Manufacturers should monitor the progress of this bill, which will
significantly enlarge the scope of products subject to PFAS
regulations if passed, as well as similar legislation already
enacted or progressing in other states.
This article has been published in the April 2, 2025, posting of CLM Magazine.
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.
