ADventures in Law

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Over the past few years, the regulation of per- or polyfluoroalkyl substances (PFAS) in consumer products has exploded. While manufacturers, distributors, and retailers have focused on significant new consumer product PFAS regulations in California and New York (some of which will go into effect on January 1, 2025), the regulated community also must keep track of the rapidly increasing number of PFAS regulations in a number of other states. Several states recently enacted or revised laws that phase out the manufacture, sale and distribution of certain consumer products containing PFAS.

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On June 5, the governor of Connecticut signed into law SB 292, which prohibits the sale or distribution of certain products containing intentionally added PFAS, including apparel, carpets or rugs, cleaning products, cookware, cosmetic products, dental floss, fabric treatments, children’s products, menstruation products, textile furnishings, ski wax and upholstered furniture, as of July 1, 2026.<a href="#_ftn1" id="_ftnref1">[1]</a> The law includes an exception for manufacturers that provide prior notification in writing to the Connecticut Department of Energy &amp; Environmental Protection that includes a description of the product, the function of PFAS in the product and all chemical registry numbers for each PFAS.<a href="#_ftn2" id="_ftnref2">[2]</a> Additionally, on and after July 1, 2026, these otherwise-excepted products must be accompanied by a “Made with PFAS chemicals” label.<a href="#_ftn3" id="_ftnref3">[3]</a> Whenever a product contains intentionally added PFAS and is a component of another product, the product that contains the component must be labeled.<a href="#_ftn4" id="_ftnref4">[4]</a> All labels must be constructed of materials that are sufficiently durable to remain legible for the useful life of the product.<a href="#_ftn5" id="_ftnref5">[5]</a> A full ban, with limited exceptions, on the sale of these products goes into effect on January 1, 2028.<a href="#_ftn6" id="_ftnref6">[6]</a>

Outdoor apparel for severe wet conditions containing PFAS is similarly banned for sale and distribution as of January 1, 2026, unless the product is accompanied by a legible and easily discernable disclosure with the statement “Made with PFAS chemicals,” including for any online listing of such products for sale.<a href="#_ftn7" id="_ftnref7">[7]</a> Outdoor apparel for severe wet conditions also is subject to a complete ban as of January 1, 2028.<a href="#_ftn8" id="_ftnref8">[8]</a>

Maine’s PFAS statutes underwent significant revision during the 2024 legislative session. Under the Maine’s recently amended PFAS law, only manufacturers of products that contain intentionally added PFAS where that use is a “currently unavoidable use” are required to comply with Maine’s reporting requirement, which has been extended to January 1, 2032. A currently unavoidable use means the “use of PFAS that the department has determined by rule under [§1614] to be essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.”<a href="#_ftn9" id="_ftnref9">[9]</a> A rulemaking is underway in Maine to identify specific instances for when a PFAS is used in a product for a currently unavoidable use. Manufacturers that employ 100 or fewer people are also now exempt from reporting.<a href="#_ftn10" id="_ftnref10">[10]</a> Retailers are generally exempt from these consumer product bans unless the retailer has received a notification that the sale of the PFAS-containing product is prohibited.<a href="#_ftn11" id="_ftnref11">[11]</a>

Further, Maine has pushed its full PFAS ban deadline back from 2030 to 2032. Maine will phase out various consumer products until that time. Below is a chart outlining the sales prohibitions on products containing intentionally added PFAS.

·&nbsp;Carpets or rugs ·&nbsp;Fabric treatments

·&nbsp;Cleaning product ·&nbsp;Cookware product ·&nbsp;Cosmetic product ·&nbsp;Dental floss ·&nbsp;Juvenile product ·&nbsp;Menstruation product ·&nbsp;Textile article (with exceptions for outdoor apparel for severe wet conditions and components of watercraft, aircraft or motor vehicles) ·&nbsp;Ski wax ·&nbsp;Upholstered furniture Products listed that do not contain intentionally added PFAS but are sold, offered for sale or distributed for sale in a fluorinated container or in a container that otherwise contains intentionally added PFAS are also included in this prohibition.

·&nbsp;Artificial turf · Outdoor apparel for wet conditions unless accompanied by a legible, easily discernable disclosure that includes the following statement: “Made with PFAS chemicals.” This labeling requirement is required for all sales in Maine (even those made on the Internet).

·&nbsp;Any products containing intentionally added PFAS unless the use of PFAS in the product is a currently unavoidable use. Products listed that do not contain intentionally added PFAS but are sold, offered for sale or distributed for sale in a fluorinated container or in a container that otherwise contains intentionally added PFAS are also included in this prohibition

·&nbsp;Cooling, heating, ventilation, air conditioning or refrigeration equipment ·&nbsp;Refrigerants, foams or aerosol propellants

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Maine’s revised law allows for a few exemptions, but most of these are for products already regulated at the federal level or for products for which the use of PFAS is unavoidable.<a href="#_ftn12" id="_ftnref12">[12]</a> This includes:

Semiconductors, including equipment and materials used in manufacturing,

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Used products or used product components,

Firefighting or fire-suppressing foam, which is regulated under 38 M.R.S.A. Section 424-C,

Medical devices, drugs, etc., and products regulated by the FDA,

Veterinary products regulated by the FDA, USDA or EPA,

Products developed for public health, environmental or water quality testing,

Products required to meet standards or requirements of the DOT, FAA, NASA, DoD or DHS,

Motor vehicles and motor vehicle equipment regulated under a federal motor vehicle safety standard,

Non-consumer laboratory equipment or electronics, and

Equipment directly used in the manufacturer or development of the above-exempted products.

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Vermont also significantly expanded its regulation of PFAS in consumer products during the 2024 legislative session. Its new consumer product laws are generally in line with both Connecticut and Maine. Beginning January 1, 2026, the manufacture, sale, offer for sale or distribution of aftermarket stain- and water-resistant treatments for rugs or carpets, cookware, food packaging, incontinency protection products, juvenile products, residential rugs and carpets, ski wax or related tuning products, textiles or textile articles, artificial turf, cosmetic products, and menstrual products containing intentionally added PFAS will be prohibited.<a href="#_ftn13" id="_ftnref13">[13]</a> Outdoor apparel with PFAS for severe wet conditions will be banned effective July 1, 2028.<a href="#_ftn14" id="_ftnref14">[14]</a>

Vermont also amended its definition of “regulated PFAS” to include not only intentionally added PFAS but also the presence of PFAS in a product or product component at or above 100 parts per million (ppm) as measured in total organic fluorine. This definition will go into effect January 1, 2026. That threshold will drop to 50 ppm of total organic fluorine July 1, 2027. Currently, the only products subject to this “regulated PFAS” definition in Vermont are textiles and textile articles.<a href="#_ftn15" id="_ftnref15">[15]</a>

On June 26, 2024, the governor of Rhode Island signed into law S. 2152, which prohibits intentionally added PFAS in several consumer products sold in the state. As of January 1, 2027, no person can manufacture, sell or offer for sale in the state any “covered product” that contains intentionally added PFAS.<a href="#_ftn16" id="_ftnref16">[16]</a> Covered products include artificial turf, carpets and rugs, cookware, cosmetics, fabric treatments, juvenile products, menstrual products, ski wax, and textile articles.<a href="#_ftn17" id="_ftnref17">[17]</a> Effective January 1, 2029, the sale or distribution of all outdoor apparel for severe wet conditions containing intentionally added PFAS is banned unless it is accompanied by a disclosure that says “Made with PFAS chemicals.”<a href="#_ftn18" id="_ftnref18">[18]</a> Earlier drafts of the bill required the yearly registration of PFAS in certain products beginning in 2028, but this requirement was removed from the final bill.

Colorado expanded its prohibition of intentionally added PFAS in consumer products during the 2024 legislative session. Previously, Colorado had restricted the presence of intentionally added PFAS in carpets and rugs, fabric treatments, food packaging, juvenile products, oil and gas products, textile furnishings, upholstered furniture, and cosmetics. Under the new law, Colorado has expanded its restriction of intentionally added PFAS to additional products.

As of January 1, 2025, Colorado will prohibit the sale, offer for sale, or distribution for sale or use (including an Internet listing or transaction) of outdoor apparel for severe wet conditions unless the product is accompanied by a legible and easily discernable disclosure that includes the phrase “Made with PFAS chemicals.”<a href="#_ftn19" id="_ftnref19">[19]</a>

By January 1, 2026, that list will expand to include cleaning products (with some exceptions), cookware (also with some exceptions), dental floss, menstruation products, ski wax and artificial turf (installation, not sale or distribution).<a href="#_ftn20" id="_ftnref20">[20]</a>

By January 1, 2028, Colorado will ban the intentional addition of PFAS in cleaning products that are floor maintenance products used in hospital or medical settings, textile articles, outdoor apparel for severe wet conditions and food equipment intended primarily for use in commercial settings that comes into direct contact with food.<a href="#_ftn21" id="_ftnref21">[21]</a> Like in Maine and Minnesota, the original language of the legislation initially included a full PFAS ban after these product phaseouts; however, this measure encountered significant opposition and was removed from the final bill.<a href="#_ftn22" id="_ftnref22">[22]</a>

Colorado’s new legislation also includes new exemptions for certain products containing intentionally added PFAS, including (i) medical devices, drugs, biologics, or diagnostics used in a medical setting or in medical applications regulated by the FDA; (ii) veterinary pesticides and parasiticide products approved by EPA or USDA; and (iii) packaging used for these exempted products.<a href="#_ftn23" id="_ftnref23">[23]</a>

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<a href="#_ftnref1" id="_ftn1">[1]</a> Conn. Pub. Act No. 24-59 §1(b)(1).

<a id="_ftn2" href="#_ftnref2">[2]</a> Id.&nbsp; <a id="_ftn3" href="#_ftnref3">[3]</a> Conn. Pub. Act No. 24-59 §1(c)(1). <a id="_ftn4" href="#_ftnref4">[4]</a> Conn. Pub. Act No. 24-59 §1(c)(2). <a id="_ftn5" href="#_ftnref5">[5]</a> Conn. Pub. Act No. 24-59 §1(c)(4). <a id="_ftn6" href="#_ftnref6">[6]</a> Conn. Pub. Act No. 24-59 §1(d). <a id="_ftn7" href="#_ftnref7">[7]</a> Conn. Pub. Act No. 24-59 §1(c)(1). <a id="_ftn8" href="#_ftnref8">[8]</a> Conn. Pub. Act No. 24-59 §1(d). <a id="_ftn9" href="#_ftnref9">[9]</a> The definition of “essential for health, safety or the functioning of society” means to use a PFAS in a product “when the function provided by the PFAS is necessary for the product to perform as intended, such that the unavailability of the PFAS for use in the product would cause the product to be unavailable, which would result in: (i) a significant increase in negative health outcomes; (ii) an inability to mitigate significant risks to human health or the environment; or (iii) a significant disruption of the daily functions on which society relies.” <a id="_ftn10" href="#_ftnref10">[10]</a> 38 M.R.S.A. §1614(2)(D).&nbsp; <a id="_ftn11" href="#_ftnref11">[11]</a> See 38 M.R.S.A. §1614(7). <a id="_ftn12" href="#_ftnref12">[12]</a> See 38 M.R.S. §1614(4).&nbsp; <a id="_ftn13" href="#_ftnref13">[13]</a> 9 V.S.A. §2494b, §2494f-m, §2494x. <a id="_ftn14" href="#_ftnref14">[14]</a> Sec.4 of S. 25 relating to 9 V.S.A. §2494e(3). <a id="_ftn15" href="#_ftnref15">[15]</a> Sec. 5 of S. 25 relating to 9 V.S.A. §2494e(15). <a id="_ftn16" href="#_ftnref16">[16]</a> See R.I. Stat. §23-18.18-4(a). <a id="_ftn17" href="#_ftnref17">[17]</a> See R.I. Stat. §23-18.18-3(7). <a id="_ftn18" href="#_ftnref18">[18]</a> R.I. Stat. §23-18.18-4(b)(2). <a id="_ftn19" href="#_ftnref19">[19]</a> Colo. Rev. Stat. §25-15-604(2.5)(a). <a id="_ftn20" href="#_ftnref20">[20]</a> Id. §25-15-604(3.5). <a id="_ftn21" href="#_ftnref21">[21]</a> Id. §25-15-604(5). <a id="_ftn22" href="#_ftnref22">[22]</a> See Colo. S.B. 24-081 as introduced, https://leg.colorado.gov/sites/default/files/documents/2024A/bills/2024a_081_01.pdf <a id="_ftn23" href="#_ftnref23">[23]</a> Colo. Rev. Stat. §25-15-603(20)(c).&nbsp;

New State Laws Limiting the Use of PFAS in Consumer Products Continue to Proliferate