PFAS Update: Current State-by-State Consumer Product Regulations – March 2022 | Bryan Cave Leighton Paisner

Manufacturers, distributors and retailers of consumer products in a wide range of industries are impacted by regulations regarding the presence of per- and polyfluoroalkyl substances (“PFAS”) in their products. This area is growing rapidly as states create new laws, and the penalties and risk of litigation for non-compliance can be significant. Below is an overview of state laws and regulations enacted and proposed to the March 21, 2022to help you determine if your products may be affected.

While this article focuses on state laws 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 article 10 of the Act for more information). Although the bill has yet to be approved by the Senate, it demonstrates that federal attention is now directed to the issues of consumer PFAS products, and that federal action in this area is reasonably likely.

PFAS is a family of chemicals made up 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:

  • Certain greaseproof papers, fast food containers, microwave popcorn bags, pizza boxes and candy wrappers;
  • Non-stick cookware (for example, Teflon);
  • Stain resistant coatings used on upholstery, carpets or other fabrics;
  • water-resistant clothing (for example, water-resistant clothing);
  • Cleaners;
  • personal care products (eg shampoo, dental floss);
  • Cosmetics (eg, nail polish, eye makeup); and
  • Paints, varnishes or fillers.

Some studies have also shown that certain PFAS chemicals accumulate in humans and animals, including deer meat and fish tissue.

Regulations specific to consumer products

States have taken many different approaches to regulating consumer products containing PFAS. To date, national regulations on PFAS in consumer products have primarily focused on the following product sectors, but these categories are not exclusive:

  • food packaging;
  • personal care products;
  • children’s products;
  • use and manufacture;
  • Textiles, fabrics, rugs or carpets and upholstery; and
  • Consumption of fish tissue and deer meat.

The following table identifies the specific product categories that each state regulates, but does not include the specific regulatory levels or requirements to avoid confusion, as the structure and limits vary widely from state to state.

No regulation: Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, 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 Virginia and Wyoming

Conclusion

While several states currently have no laws or regulations regarding PFAS in consumer products, many are considering ways to address these chemicals. As noted above, Congress is also considering regulation at the national level. Whether or not your business is currently subject to PFAS-related consumer product regulations, a prudent first step in assessing your potential risk is to determine if any of your products or production methods contain or use these chemicals.

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