Numerous States Begin to Impose Notification Requirements and Prohibitions on Products Containing “Intentionally Added” PFAS

In all, California, Colorado, Connecticut, Hawaii, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington have placed or soon will be placing prohibitions on the distribution of per- and polyfluoroalkyl substances (PFAS) in food packaging containers, cookware and, in other cases, a wide range of products under the authority of consumer protection laws. Companies across the supply chain will be impacted by these regulations. Industry has criticized the state laws as overreaching, particularly considering the inability of certain state agencies to enforce these laws effectively.

Regulated Entities and Scope of the Requirements
Most of the laws passed to date regulate the activities of manufacturers and distributors, although some also impose obligations upon retailers.

The common denominator is that all 11 states will regulate food packaging containing “intentionally added PFAS” (more on this term below). The states’ definitions of food packaging are largely similar, with most covering materials composed of paper, such as takeout containers, disposable utensils, trays, wrappers and liners. Certain states (e.g., Connecticut, Minnesota, Rhode Island and Vermont) also define food packaging broadly enough to apply to plastic products. In California, the laws also extend to certain cookware. Maine is notable because its law is substantially broader and covers any product that contains PFAS.

Consult this table for a description of the scope of regulation in the various states.

The Problem of Intentionally Added PFAS
Each state has adopted a broad definition of PFAS that applies to any fluorinated organic chemicals containing at least one fully fluorinated carbon atom. A definition this broad leaves little room for exceptions with respect to individual PFAS chemicals that, perhaps, do not present the same risks to human health and the environment as other chemicals in the class.

A potentially significant, albeit vague, limitation on the scope of the new laws involves their applicability to only “intentionally added” PFAS. In general, the laws provide that a PFAS chemical is intentionally added if the manufacturer deliberately chose to add it to impart a specific characteristic or function in the regulated product or product component. In practice, the requirement to discern whether a PFAS chemical was “intentionally added” may prove burdensome to parties not involved in the manufacturing process. In particular, most products subject to the regulations are not sold with accompanying safety data sheets or other product specifications indicating chemical composition. Therefore, only the primary manufacturers may know which PFAS were intentionally added, and some or all of these manufacturers may attempt to protect this information as proprietary or confidential. Therefore, the burden will fall on U.S. importers, wholesalers and distributors to gather the information required by the states in which their regulated products are distributed or sold, or to conduct their own testing.

California is anomalous. In addition to placing prohibitions on products containing intentionally added PFAS, it will regulate unintentionally added PFAS present at a concentration of greater than 100 ppm.

General Summary of Substantive Requirements
As discussed above, all of the states that have thus far passed PFAS regulations applicable to consumer products impose prohibitions on the sale of food packaging containing “intentionally added” PFAS. However, some states will regulate other consumer products reaching far beyond food packaging. In addition, some of the state laws impose notification requirements, including public disclosure of products’ PFAS contents on product labels, and maintenance of certifications of compliance with the PFAS laws.

For example, California has already begun prohibiting the sale of cookware containing intentionally added PFAS without disclosure of the PFAS on the product label. Starting July 1, 2023, California will also prohibit the distribution and sale of new products designed for children under the age of 12 (i.e., “juvenile products”) containing intentionally added PFAS. Cosmetic and textile products will be added to California’s PFAS prohibitions in 2025, with a more expansive prohibition on manufacturing, distributing, selling, delivering, or holding for sale, which will impact many links on the supply chain.

New York, which began regulating PFAS in food packaging on January 1, will also prohibit the use of PFAS in apparel by the end of 2023. In addition, New York imposes reporting requirements with respect to various chemicals of concern, including PFOA, contained in children’s products. There are various additional pieces of proposed legislation in the works in New York which, if passed, will affect the general packaging, carpets, cosmetics, feminine hygiene products, and a host of other industries, culminating in a potential prohibition of PFAS in all consumer products by 2030.

Maine’s prohibition is the broadest, applying to all products. Sales of products with intentionally added PFAS in Maine are now prohibited unless the seller notifies the state agency of the presence, amount and purpose of the PFAS in the product. Industry has expressed concern regarding Maine’s sweeping notification requirement because of the undue burden that it may impose. Making matters worse, it has been alleged that the Maine Department of Environmental Protection lacks the resources to implement and enforce so sweeping a law. Although the Maine Department of Environmental Protection has liberally offered extensions to over 1,000 companies for compliance with the notice requirement (some resulting from extension requests by trade associations on behalf of represented companies), these extensions appear to have been limited to six months, and it is unclear whether further extensions will be granted. Notably, there is no “notice” safe harbor for carpets, rugs and fabric treatments, and beginning January 1, 2030, the “notice” safe harbor is removed for all consumer products.

Certain states have enacted multiple PFAS-related statutes, in addition to promulgating regulations, which impose various obligations, including, in cases, the same set of products (e.g., California AB 2762 and AB 2771, both of which regulate PFAS in cosmetics). In states with numerous, disparate PFAS laws, the likelihood of confusion on the part of regulated entities arising from actual or potentially conflicting legal requirements is greater, as is the likelihood that such entities may overlook a specific, applicable obligation.

Additional Requirements
The laws of certain states impose additional obligations besides those discussed above. For example, Connecticut, Maine, Maryland, Rhode Island, Vermont and Washington all will require maintenance of a certificate of compliance with the states’ prohibitions (or exemptions), which must be furnished to the governing state agency on request. In Connecticut, Rhode Island and Washington, any member of the public can request production of the certificate. The failure or inability to produce a certificate in the states that require it could make a business a convenient target for litigation or regulatory enforcement.

Furthermore, the laws of certain states establish standards for companies replacing PFAS in their products as a result of which companies could run afoul of other consumer protection statutes. For example, in replacing prohibited PFAS chemicals in food packaging, manufacturers in Connecticut, Maine and Rhode Island will be required to evaluate the toxicity or hazard of alternative replacement chemicals and choose one that creates a lesser hazard than the PFAS being replaced. In California, this requirement is even stricter: manufacturers must use the “least toxic alternative” chemical, which is not defined, when removing PFAS from food packaging.

Enforcement Provisions
Non-compliance with these new laws could subject companies to regulatory enforcement and penalties. All the states in question have codified penalty provisions that would apply to violations of the pertinent laws. Because regulation of PFAS in consumer products is so novel, the promptness and extent to which these laws will be enforced in each state remains to be seen. Regulated industries should be aware that, similar to other environmental laws, most states impose per-day or per-violation penalties for noncompliance that may be aggravated by intentional or knowing violations or mitigated by good faith compliance efforts.

Companies should not neglect insurance. Insurance is unlikely to cover compliance with statutory and regulatory requirements that are wholly prophylactic and penalties for failure to comply with these new requirements. On the other hand, insurance may be available for claims against directors and officers for PFAS liability, for claims by states alleging groundwater contamination, or claims by individuals alleging harm from exposure to a company’s PFAS-containing products. The insurance industry is likely to increase the breadth of PFAS-related exclusions in newly issued policies, though some companies may be able to avoid these new exclusions by working with their insurance brokers. Now is also the time to consider whether there are historic occurrence-based policies available if claims for environmental property damage or alleged bodily injury arise.

The regulatory push for removal of PFAS from consumer products has begun. The state laws considered in this alert may be the tip of the iceberg, as additional, broadly applicable prohibitions of PFAS in consumer products and other consumer protection measures are on the horizon. What these laws have in common is that they stand to place potentially tremendous pressure on regulated entities to conduct evaluations of both their own operations and those of their supply chain partners to ensure compliance.

Given the fast-changing legal landscape, regulated entities should consider the merits of maximizing the legal privilege that could protect internal evaluations. Conducting the evaluations as internal audits performed under the auspices of counsel would be more protective, for example.

With respect to the most imminently effective laws, regulated entities may wish to consider practical steps (e.g., extension requests) to delay compliance and develop strategies to obtain the necessary information from their suppliers, communicate effectively with governmental regulators and customers, and mitigate or offset potential liabilities. Regarding the latter, the relevant laws often impose strict liability, so regulated entities may also consider whether they can shift liabilities contractually to suppliers or others. Finally, these laws highlight the potential long-term value of minimizing products’ nexuses to PFAS.

Pillsbury has extensive experience assisting clients on matters related to PFAS and with respect to consumer protection laws, in general. If you are unsure whether your business is subject to or in compliance with PFAS regulation, contact Pillsbury for more information.