Read the full article by Thomas S. Lee, John R. Kindshuch, and David P. Brankin (Mondaq)

“Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by regulations regarding the presence of per- and polyfluorinated chemicals (“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, especially for you to investigate 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 and industrial applications 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 rugs and carpets, 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 orsealants.

Specific Consumer Products Regulation

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:

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