ADventures in Law

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Consumer product laws regulating per- and polyfluoroalkyl substances (“PFAS”) have proliferated in the United States in the past few years with little consistency. States have enacted numerous consumer product laws addressing PFAS, using various approaches that often focus on regulation of any intentionally added PFAS in products, but that also can regulate specific amounts of PFAS based on total organic fluorine content (including for certain products in California and Vermont). &nbsp;

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Despite an increased awareness of the potential for overregulation, there continues to be a risk of unintended consequences from the regulation of numerous products that technically contain PFAS under the broadest definitions (including fluoropolymers) that are not known to pose any risk to human health or the environment, that provide important consumer benefits, and that may have few viable substitutes. In addition to the complexity of determining which PFAS are regulated under state law, states are adopting slightly different definitions for regulated products and different compliance deadlines. As new PFAS laws continue to be enacted, companies will need to review them closely to determine whether their products may be regulated.

Is My Product Regulated?

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States have taken the lead in regulating PFAS present in rugs, carpets, textiles, apparel, cookware, juvenile products, cosmetics, menstruation products, ski wax, fabric treatments, food packaging, oil and gas products, and furniture. Just as the definitions used for PFAS are varied across jurisdictions, so are the definitions of these product categories, making it difficult for manufacturers to immediately identify whether state laws may apply to their products.

New York defines “apparel” as “clothing items intended for regular wear or formal occasions including, but not limited to, undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, vests, dancewear, suits, saris, scarves, tops, leggings, leisurewear, formal wear, outdoor apparel, onesies, bibs, and diapers.”<a href="#_ftn1" id="_ftnref1">[1]</a> California takes a broader view by including apparel within its definition of “textile articles,” which includes “goods of a type customarily and ordinarily used in households and businesses.” That includes apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins and tablecloths.<a href="#_ftn2" id="_ftnref2">[2]</a> Colorado, Connecticut, Maine and Vermont also have slightly different definitions of “apparel” and “textile articles” that may impact the regulation and timing of regulation of various consumer products sold in those states. This highlights the importance of reviewing each of the regulated product categories to identify whether products are regulated.

Under Colorado law, “cookware” means “a durable houseware product that is used in residences or kitchens to prepare, dispense, or store food or beverages.”<a href="#_ftn3" id="_ftnref3">[3]</a> It includes “pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils.” But the definition excludes food equipment intended for use in commercial settings or food equipment sold to a business that has a retail food establishment license.<a href="#_ftn4" id="_ftnref4">[4]</a>&nbsp; In California, cookware includes items used “in homes and restaurants.”<a href="#_ftn5" id="_ftnref5">[5]</a> Further, under California law, manufacturers of cookware containing intentionally added PFAS on the “handle of the product or in any product surface that comes into contact with” food or beverages must list the presence of those chemicals on a product label.<a href="#_ftn6" id="_ftnref6">[6]</a> This is a reminder to businesses to consider the intended purchaser of its product and to recognize that the same product may be regulated for PFAS in different ways in different states. Cookware containing PFAS also is subject to current or future regulation in Maine, Vermont, Connecticut and Minnesota.

In Vermont’s recent law regulating PFAS, “cosmetics” are defined as “articles or a component of articles intended to be rubbed, poured, sprinkled, or sprayed on; introduced into; or otherwise applied to the human body or any part thereof for cleansing, promoting attractiveness, or improving or altering appearance, including those intended for use by professionals.”<a href="#_ftn7" id="_ftnref7">[7]</a> However, soap, dietary supplements and products approved by the FDA are excluded. Colorado’s definition is similar, but offers an exception only for products requiring a prescription for distribution or dispensation.<a href="#_ftn8" id="_ftnref8">[8]</a> Colorado also provides a list of personal care products that are not always considered to be cosmetics, including skin moisturizer, perfume, nail polish, shampoo, conditioner, hair dye, permanent wave and deodorant. Minnesota’s law takes a slightly different approach, expanding the definition of cosmetics to mean articles intended for use as a component of any such article.<a href="#_ftn9" id="_ftnref9">[9]</a> California, Oregon, Maine, Maryland and Washington also have adopted laws regulating PFAS in cosmetics and personal care products.

In Minnesota, the term “juvenile products” refers to products “designed or marketed for use by infants and children under 12 years of age.”<a href="#_ftn10" id="_ftnref10">[10]</a> This includes “a baby or toddler foam pillow; bassinet, bedside sleeper; booster seat; changing pad; child restraint system for use in motor vehicles and aircraft; co-sleeper; crib mattress; highchair; highchair pad; infant bouncer; infant carrier; infant seat; infant sleep positioner; infant swing; infant travel bed; infant walker; nap cot; nursing pad; nursing pillow; playmat; playpen; play yard; polyurethane foam mat, pad, or pillow; portable foam nap mat; portable infant sleeper; portable hook-on chair; soft-sided portable crib; stroller; and toddler mattress.” But the definition does not include children’s electronic products or adult mattresses.

California’s and Colorado’s definitions of juvenile products are largely identical, but they further exempt “internal component[s] of a juvenile product that would not come into direct contact with a child’s skin or mouth during reasonably foreseeable use and abuse of the product.”<a href="#_ftn11" id="_ftnref11">[11]</a> Maine, Connecticut, Oregon and Vermont also have adopted laws regulating PFAS in juvenile products.

Companies increasingly must navigate a labyrinth of state PFAS regulation that may require a comprehensive review of all potentially applicable laws. This may also include consideration of potential exemptions, including in Maine and Minnesota, for currently unavoidable uses of PFAS. “Currently unavoidable use” means a use of PFAS that has been determined by the respective state environmental agency “to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available.”<a id="_ftnref12" href="#_ftn12">[12]</a> Both Maine and Minnesota continue to work on rulemakings to identify specific currently unavoidable uses of PFAS. Maine expects to release a draft rule in mid-summer 2024. Other states, like Washington, take a different approach. In its May 2024 report, Washington reviewed apparel containing PFAS as part of its Safer Products Program.<a id="_ftnref13" href="#_ftn13">[13]</a> In its report to the Washington Legislature, the Washington State Department of Ecology found that apparel containing PFAS “do not meet [Washington’s] minimum criteria for safety.”<a id="_ftnref14" href="#_ftn14">[14]</a> Washington state authorities then identified PFAS alternatives which included chemical alternatives, process alternatives, and material alternatives to try to establish that manufacturers may obtain oil- and liquid- resistant barriers without the use of PFAS.

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<a href="#_ftnref1" id="_ftn1">[1]</a> NYCL, Env’t Conserv. §37-0121(4)(b).

<a href="#_ftnref2" id="_ftn2">[2]</a> 13.5 Cal. Health &amp; Saf. Code §108970.

<a href="#_ftnref3" id="_ftn3">[3]</a> C.R.S. §25-15-603(4)(a).

<a href="#_ftnref4" id="_ftn4">[4]</a> C.R.S. §25-15-603(4)(b)–(c).

<a id="_ftn5" href="#_ftnref5">[5]</a> 15 Cal. Health &amp; Saf. Code §109010(a). <a id="_ftn6" href="#_ftnref6">[6]</a> 15 Cal. Health &amp; Saf. Code §109011(a).

<a href="#_ftnref7" id="_ftn7">[7]</a> 9 V.S.A. §2494a(2). This section is effective January 1, 2026.&nbsp;

<a href="#_ftnref8" id="_ftn8">[8]</a> See C.R.S. § 25-15-603(5)(c). There is a carve-out for hydrofluoroolefins used as propellants in cosmetics, but it expires January 1, 2027. See id. § 25-15-603(5)(d).

<a href="#_ftnref9" id="_ftn9">[9]</a> M.R.S. §116.943(i).

<a href="#_ftnref10" id="_ftn10">[10]</a> Id. §116.943(m).

<a id="_ftn11" href="#_ftnref11">[11]</a> 12.5 Cal. Health &amp; Saf. Code §108945(c)(2)(C); C.R.S. §25-15-603(13).

<a id="_ftn12" href="#_ftnref12">[12]</a> See 38 M.R.S. §1614(1)(B); M.R.S. §116.943(j).

<a href="#_ftnref13" id="_ftn13">[13]</a> See generally Washington State Dep’t of Ecology, Technical Supporting Documentation for Regulatory Determinations Report to the Legislature (May 2024).

The Differing Regulatory Definitions of PFAS-Containing Products