PFAS in Consumer Products are Targeted by State Regulators and Class Action Plaintiffs
Consumer product manufacturers, importers, and retailers of products containing PFAS must comply with new regulations in four states in 2023: California, Maine, Vermont, and Washington. Another six states have enacted PFAS regulations that go into effect in 2024 and 2025: Colorado, Maryland, Connecticut, Minnesota, Hawaii, and New York. Still more states, including Massachusetts, New Jersey, and Minnesota, have already announced their intention to enact new state laws and regulations this coming year. New federal PFAS reporting regulations will likely be finalized this year. Class action lawsuits directed at consumer products in the cosmetic, packaging, dental products, apparel, and food industries—many of which were filed last year—will make their way through the courts this year, and plaintiffs will most likely start to target a variety of new sectors.
This article provides an overview of the current regulatory environment for products containing PFAS. To learn more about PFAS, contact any member of our PFAS products team: James Pollack, Jessica Ferrell, Jeff Kray, and Victor Xu. And sign up here to receive updates on our forthcoming PFAS Deskbook, published by the Environmental Law Institute.
2023 Product Regulations
Maine: Maine was the first jurisdiction to mandate that consumer product manufacturers report any PFAS in any of their products. Beginning January 1, 2023, product manufacturers must provide written notice to the Maine Department of Environmental Protection (“DEP”) regarding any products that contain any intentionally added PFAS. The notice must include a description of the product, the purpose of using PFAS in the product, the amount of each type of PFAS in the product, as well as manufacturer contact information. The sale of any products containing PFAS in Maine without reporting subjects the product manufacturer to potential civil penalties.
Maine DEP has not finalized its reporting regulations. Nonetheless, the agency has indicated that the January 1 deadline still binds consumer product manufacturers—even with no reporting infrastructure in place. The agency has extended the reporting deadline by six months after the agency finishes its rulemaking (estimated in May 2023) for companies that sought an extension from the agency. The full list of granted extensions can be found here. Companies that did not obtain an extension must begin reporting now, even though Maine DEP has not provided a platform to submit such reports or clarity on what test methods will meet the state’s requirements. While it is not clear whether Maine DEP will continue to grant extensions after the new year, the agency’s website indicates that consumer product manufacturers may request an extension.
California: In California, consumer products manufacturers and retailers must comply with Proposition 65 labeling requirements for products containing certain PFAS. Proposition 65 requires product manufacturers, producers, packagers, importers, suppliers, or distributors to place “clear and reasonable” warnings on products that contain chemicals that the state has determined may cause cancer, birth defects, or other reproductive harms. California has added three PFAS to its warning list: PFOA and PFOS on November 10, 2017 for reproductive toxicity and on February 25, 2022, for cancer; and PFNA on December 31, 2021 for reproductive toxicity. California is already considering the addition of PFDA, PFHxS, and PFUnDA to the Proposition 65 list.
Along with Proposition 65, CA Health & Safety Code Section 108945 (previously known as AB 652) prohibits the sale or distribution of children’s products containing intentionally added PFAS after July 1, 2023. The law broadly defines such products (referred to as “juvenile products”) to include any “product designed for use by infants and children under 12 years of age.” It includes limited exceptions that cover electronics, medical devices, and adult mattresses. The law defines “intentionally added PFAS” as those products with total organic fluorine (“TOF”) at or above 100 parts per million (“ppm”). Laboratories can test for TOF (fluorine atoms that have bonded to carbon atoms) as a proxy for PFAS in a given sample.
California has also adopted labeling and chemical disclosure requirements for PFAS in cookware. These requirements mandate online disclosure if the cookware contains PFAS beginning January 1, 2023. The manufacturer must affix a product label to the cookware starting January 1, 2024.
Washington: Washington has enacted a ban on food packaging with intentionally added PFAS, if safer alternatives are identified. PFAS in packaging wraps and liners, plates, food boats, and pizza boxes is banned fully in the state beginning February of 2023, and this list will expand to include food bags and sleeves, bowls, flat serviceware, open-top containers, and closed containers beginning May 2024.
Vermont: Vermont has adopted a ban on ski wax, aftermarket fabric treatments, food packaging, and carpets and rugs with intentionally added PFAS that goes into effect on July 1, 2023.
Federal Product Regulations: While federal PFAS regulation in consumer products have been relatively limited, EPA is working to finalize a proposed PFAS reporting rule under the Toxic Substances Control Act (“TSCA”) that would impose new and substantial recordkeeping and reporting costs on product manufacturers and importers. The proposed rule would require U.S. manufacturers of any product containing PFAS and U.S. importers of any articles containing PFAS to investigate and certify to EPA the amount of all PFAS that they have manufactured or imported into the United States for the past 12 years (beginning January 1, 2011). EPA estimates industry-wide compliance costs to be up to $876 million and up to $1.8 million for each manufacturer or $224,000 for each article importer. EPA is still developing the rule, and will likely adopt it this year. Further, product manufacturers and importers must comply with EPA’s Significant New Use Rules for chemicals listed on the TSCA Chemical Substance Inventory and Pre-Manufacture Notice requirements for unlisted chemicals. These TSCA requirements create reporting obligations before importing or manufacturing certain chemicals—many PFAS fall under these regulations.
Sectors Targeted by PFAS Regulations to Date
The sectors most frequently targeted by state regulators include children’s products, textiles, apparel, and footwear, cosmetics, upholstery, furniture, rugs, carpets, cookware, food packaging, ski wax, and waterproofing treatments. Several of these categories are highlighted below.
As described above, California has adopted a prohibition on children’s products containing intentionally added PFAS that begins on July 1, 2023. Other state-level PFAS regulations targeting children’s products include:
- Vermont has added PFOA and PFOS to its list of Chemicals of High Concern to Children, requiring children’s product manufacturers to comply with state disclosure and reporting requirements under that program if their products include those PFAS.
- Oregon is requiring products manufacturers to report PFOS in children’s products, and to remove PFAS from products that are mouthable, or in children’s cosmetics, or made for or marketed to children under three years old under the state’s Toxic-Free Kids Act.
- Washington’s Children’s Safe Products Reporting Rule requires manufacturers to complete Chemicals of High Concern to Children reporting for PFOS and PFOA in children’s products.
- Colorado has banned the sale or distribution of children’s products that contain intentionally added PFAS chemicals starting January 1, 2024.
- New York has implemented a reporting requirement for children’s products including apparel—the state is still developing the final list of reportable chemicals which will likely include certain PFAS.
Textiles, Apparel, and Footwear
California recently enacted AB 1817, now codified at CA Health & Safety Code Section 108970. It prohibits manufacture, distribution, or sale of textiles containing intentionally added PFAS beginning January 1, 2025. The definition of textiles is broad, including apparel, accessories, bags, bedding and upholstery, as well as other household fabric products. It excludes single-use paper products, carpets and rugs, textile treatments, vehicle components, industrial filtration materials, and laboratory testing materials. The law covers products when PFAS has been intentionally added to “have a functional or technical effect in the product” and the TOF in the product exceeds certain phased thresholds. The TOF thresholds in the law are set at 100 ppm starting January 1, 2025, with a step down to 50 ppm beginning January 1, 2027.
AB 1817 includes several exceptions. It contains a delayed phase-in for products classified as “outdoor apparel for severe wet conditions,” including outerwear products for activities such as mountaineering, fishing, and whitewater kayaking. The manufacture, distribution, and sale prohibition for outdoor apparel for severe wet conditions begins on January 1, 2028; however, those products must be clearly labeled as “Containing PFAS chemicals” starting January 1, 2025. Further, the law completely exempts personal protective equipment (“PPE”) and “clothing items for exclusive use by the United States military” from its prohibitions.
Several other states have indicated plans to regulate apparel containing PFAS. Pursuant to the Puget Sound Act, Washington’s Department of Ecology has announced that it will focus its next round of rulemaking on textiles and apparel with intentionally added PFAS, including water-resistant clothing and gear as well as firefighter personal protective equipment. For these items, Ecology has already begun that rulemaking process by soliciting stakeholder feedback, and should conclude its rulemaking by 2025. In New York, S.6291A/A.7063A currently sits on the Governor’s desk awaiting the Governor’s signature. If signed, the bill would prohibit the sale or offer for sale of any apparel containing intentionally added PFAS beginning January 1, 2024.
With the recent passage of AB 2771, codified at Cal. Health & Safety Code Section 108981, California will prohibit the manufacture, sale, delivery, or offer for sale of cosmetic products with intentionally added PFAS beginning Jan. 1, 2025. This represents an expansion of a California law enacted in 2020 that banned the use of 13 specific PFAS in cosmetics. Similarly, Colorado will prohibit all intentionally added PFAS in cosmetics by January 1, 2025. Maryland has also adopted a ban on the manufacture, handling, or sale of cosmetics with 13 types of intentionally added PFAS, including PFOA and PFOS, starting January 1, 2025.
Upholstery, Furniture, Rugs, and Carpets
In 2021, California designated carpets and rugs containing PFAS as Priority Products. Accordingly, the state now requires manufacturers to submit a Priority Product Notification for these products, followed by documents demonstrating replacement alternatives or removal options.
Beginning in 2023, Maine will ban the sale of residential carpets or rugs that contain intentionally added PFAS. Similarly, Vermont and Maryland will both fully prohibit the intentional addition of PFAS to carpets and rugs, beginning July 1, 2023 and January 1, 2024 respectively. Colorado’s Perfluoroalkyl and Polyfluoroalkyl Chemicals Consumer Protection Act provides staggered phase-out dates for intentionally added PFAS in indoor textile furnishings and upholstered furniture (January 1, 2025) and outdoor textiles and furniture (January 1, 2027).
Under Washington’s Puget Sound Act, the state Department of Ecology has already designated carpets and rugs, indoor leather and textile furniture and furnishings, and aftermarket stain and water resistance treatments for leather and textile products as priority consumer products for regulation. It has released proposed regulations that include: a ban on the manufacture, sale, and distribution of intentionally added PFAS in after-market stain and water-resistant treatments and carpets and rugs by January 1, 2025; a ban on intentionally added PFAS in leather and textile furniture and furnishings intended for indoor use by January 1, 2026; and a reporting program for the use of PFAS in leather and textile furniture and furnishings intended for outdoor use by January 1, 2024.
As described above, California has adopted labeling and disclosure requirements for bakeware containing PFAS that begin to go into effect on January 1, 2023. Colorado law contains similar labeling and consumer warning requirements for cookware that contains intentionally added PFAS.
As described above, Washington and Vermont have adopted food packaging regulations that go into effect this year. Within the next three years, PFAS bans will go into effect in New York, Connecticut, Rhode Island, Hawaii and Minnesota. Maine, California, and Maryland have banned PFAS in food packaging with some limitations, with California implementing a limit at 100 parts per million of total organic fluorine for plant-based food packaging. New Hampshire requires bottled water manufacturers to report PFAS levels in water when applying for or renewing beverage licenses.
Starting July 1, 2023, Vermont will prohibit ski waxes containing PFAS.
Colorado, Maine, and Vermont have all passed legislation prohibiting the sale of aftermarket fabric treatments that contain intentionally added PFAS, beginning in 2023 for Maine and Vermont and 2024 for Colorado. California recently approved a requirement for manufacturers of any aftermarket fabric treatment containing PFAS to submit a Priority Product Notification among other investigative documents and reports, to the state.
Washington included after-market stain and water-resistant treatments in its first round of rulemaking for the Puget Sound Act, and has proposed a full ban on these products by January 1, 2025.
Other Regulated Products
Along with the other products listed above, Colorado has also banned the sale or distribution of oil and gas products that contain intentionally added PFAS beginning January 1, 2024.
Consumer Products Litigation
Last year saw several consumer products lawsuits filed related to PFAS in consumer products. They target manufacturers of apparel, cosmetics, food service, paper products, feminine hygiene products, cleaning supplies, and dental products. In the last year alone, complaints have been filed against Clorox as parent company of Burt’s Bees, Coca Cola as parent of Simply Orange Juice Company, along with cosmetic manufacturers Shiseido, CoverGirl, and L’Oreal. There have also been cases filed against McDonald’s, Kroger, REI, Keurig Dr. Pepper, and many other companies.
Consumers and advocates alike have started to use relatively inexpensive test methods that identify levels of total fluorine (“TF”) or total organic fluorine (“TOF”) in a sample as a proxy for PFAS content. These test methods provide an approximate test for PFAS content.  This test method has resulted in reports of fluorine found in food packaging, yoga pants, cosmetics, sports bras, rain jackets, comforters, pet food, and a variety of other products. Once advocacy groups such as the Environmental Working Group or Consumer Reports have identified and publicized products containing PFAS, the lawsuits have generally followed.
Litigation so far has focused on claims related to marketing rather than claims related to harms. Marketing claims include deceptive marketing, failure to warn or label, greenwashing allegations, negligent misrepresentation, unjust enrichment, and claims filed under state consumer protection laws. Claimants in these cases tend to focus on the economic harms related to purchasing those products as well as the impact these products have on the environment. Such claims do not rely on the potential health effects of PFAS, or the potential for exposure from that product category. To protect against these kinds of claims, consumer product manufacturers should review their marketing practices related to sustainability to ensure claims do not create potential liability.
The early days of this litigation show clear advantages to proactive preparation, the need to adapt sales and marketing practices to the new regulatory landscape, and to prepare for product liability litigation.
This year will see markedly greater regulation and litigation involving PFAS. Many more states will likely be joining the ten that have already enacted PFAS laws, introducing new bans and reporting requirements. It would be prudent for manufacturers and retailers to pay close attention to this changing national landscape and to stay apprised of new demands and requirements for their industries.
The author would like to thank Solenn Grainger-Monsen for her contributions to this article.
https://www.njleg.state.nj.us/bill-search/2022/A4758; https://app.leg.wa.gov/billsummary?BillNumber=5703&Year=2021&Initiative=false; https://www.house.leg.state.mn.us/bills/Info/HF2906/92/2021/0; https://www.house.leg.state.mn.us/bills/Info/HF2907/92/2021/0; https://www.house.leg.state.mn.us/bills/Info/HF2952/92/2021/0; https://malegislature.gov/Commissions/Detail/556/Bills
 California Department of Toxic Substances Control, About Proposition 65, https://oehha.ca.gov/proposition-65/about-proposition-65#:~:text=Proposition%2065%20requires%20businesses%20to,are%20released%20into%20the%20environment.
 Cal. Health and Safety Code Section 108945.
 Children’s electronic products, medical devices, internal components that will not come into direct contact with skin or mouth, and adult mattresses. Id.
 Cal. Health and Safety Code Section 109012.
Id. Section 109011.
 18 V.S.A. chapter 33A – 33C
 Marten Law Article here: https://www.martenlaw.com/news-and-insights/what-is-in-epas-billion-dollar-pfas-reporting-rule
 Toxic Substances Control Act Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances, 86 Fed. Reg. 33926 (proposed June 28, 2021) (to be codified at 40 C.F.R. pt. 705). The rule also covers manufacturers and importers of PFAS chemicals or chemical mixtures containing PFAS.
 See U.S. EPA, Initial Regulatory Flexibility Analysis and Updated Economic Analysis for TSCA Section 8(a)(7) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances at 1 (2022).
 Cal. Health and Safety Code Section 108945.
 OAR 333-016-2001 – 333-016-3010.
 Cal. Health and Safety Code Section 108970
 Cal. Health & Safety Code Section 108981.
 Cal. Health & Safety Code Section 108980.
 18 V.S.A. chapter 33, https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/hb0275?ys=2022rs
 Col. Rev. Statutes 25-15-604
 Cal. Health and Safety Code Section 109010 et seq.
 Col. Rev. Statutes 25-15-604
https://www.nysenate.gov/legislation/bills/2019/S8817, 18 V.S.A. chapter 33A, https://legislature.vermont.gov/Documents/2022/Docs/BILLS/S-0020/S-0020%20As%20Introduced.pdf, https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2021/07-2021/Governor-Lamont-Signs-Legislation-Banning-Use-Of-PFAS, http://webserver.rilin.state.ri.us/BillText/BillText22/HouseText22/H7438A.pdf, https://www.capitol.hawaii.gov/sessions/session2022/bills/HB1644_CD1_.htm, https://www.revisor.mn.gov/statutes/cite/325F.075
 18 V.S.A. chapter 33C
https://www.maine.gov/dep/spills/topics/pfas/PFAS-products/index.html#:~:text=A%20retailer%20may%20not%20sell,products%20containing%20intentionally%20added%20PFAS, https://leg.colorado.gov/bills/hb22-1345, 18 V.S.A. chapter 33
 Gruen v. The Clorox Company, 3:22-cv-935 (N.D. Cal. filed Feb. 15, 2022).
 Joseph Lurenz et al., v. The Coca-Cola Company et al., Case No. 7:22-cv-10941 (S.D.N.Y. filed Dec. 28, 2022).
 Onaka v. Shiseido Americas Corporation, 1:21-cv-10665 (S.D.N.Y. filed Dec. 14, 2021).
 GMO Free USA v. Cover Girl Cosmetics, 2021 CA 004786B (D.C. Sup. Ct. filed Dec. 20, 2021).
 Davenport v. L’Oreal USA, Inc., 2:22-cv-1195 (C.D. CA, filed Feb. 22, 2022).
 McDowell v. McDonald’s Corporation, 1:22-cv-01688 (N.D. Ill. filed Mar. 31, 2022).
 Ambrose v. Kroger Co., 3:20-cv-04009 (N.D. Cal. June 16, 2020).
 Lupia v. Recreational Equipment, Inc., 3:22-cv-02510 (N.D. Cal. filed Apr. 25, 2022).
 Walker v. Keurig Dr. Pepper, 2:22-cv-05557 (E.D.N.Y. Filed Sep. 16, 2022).