PFAS in Products: 2024 Is Off to a Busy Start in Many States

2024 is off to a busy start for folks following state laws related to per- and polyfluoroalkyl substances (PFAS) in products. Multiple states have passed legislation impacting product manufacturers and retailers. Maine and Minnesota are leading the way, but several other states have enacted laws that go into effect in 2024. Below is a sampling and an update on developments in Maine and Minnesota, which Holland & Knight covered in its previous alert, "Minnesota Joins Maine in Enacting Comprehensive PFAS Reporting Requirements," July 27, 2023.

Colorado

Colorado enacted in June 2022 a statute prohibiting the sale or distribution of certain consumer products containing intentionally added PFAS chemicals. C.R.S.A. § 25-15-601 et seq. These prohibitions are phased in, depending on the product. C.R.S.A. § 25-15-604. As of Jan. 1, 2024, if they contain "intentionally added PFAS chemicals," Colorado prohibits the sale or distribution of carpets or rugs, fabric treatments, food packaging, juvenile products, and oil and gas products. C.R.S.A. 25-15-604(1). Each of those product categories is expressly defined in the statute.

Cookware, a term the statute defines as "a durable houseware product that is used in residences or kitchens to prepare, dispense, or store food or beverages," is as of Jan. 1, 2024, also subject to regulation if it contains any intentionally added PFAS in the handle of the product or on any surface that comes into contact with food, foodstuffs or beverages. C.R.S.A. 25-15-604(2). With certain exceptions for cookware having a surface area of less than 2 square inches and unable to fit a product label, Colorado requires all regulated cookware as of Jan. 1, 2024, to have a product label that contains a statement about where on the internet "more information about PFAS chemicals" in the cookware can be found. Unless "no individual PFAS chemical is intentionally added to the cookware," a manufacturer may not claim on the cookware package that the product is free of any PFAS chemicals. C.R.S.A. § 25-15-604(2)(e).

Practitioners should know that as of Jan. 22, 2024, an amendment to this statute has been proposed in Colorado's senate, S.B. 81, which would add various new categories to the list of products that could not be sold or distributed if they contain intentionally added PFAS chemicals.

Colorado's statute defines "intentionally added PFAS chemicals" to mean "PFAS chemicals that a manufacturer has intentionally added to a product and that have a functional or technical effect on the product." C.R.S.A. § 25-15-603(12)(a). PFAS only incidentally present as a result of aids to the manufacturing process appears not to be subject to the Colorado statute.

Connecticut

As of Jan. 1, 2024, a Connecticut statute enacted in 2021 that prohibits the sale or promotion by manufacturers or distributors of any "food package to which PFAS has been intentionally introduced during manufacturing or distribution in any amount" takes effect. The law defines "food packaging" to mean "any package or packaging component that is applied to or in direct contact with any food or beverage." C.G.S.A. § 22a-255h(17).

Connecticut defines the term "intentionally introduced" to mean any "deliberately utilized regulated metal or PFAS in the formulation of a package or packaging component where the continued presence of such metal or PFAS is desired in the final package or packaging component to provide a specific characteristic, appearance or quality." C.G.S.A. § 22a-255h(10).

Maine

Maine has two statutes that regulate PFAS in products. The older of these two statutes was enacted in 2019 and seeks to reduce toxics in food packaging. The more recent statute (Maine's PFAS in Products Law) was enacted in 2021, amended in 2023 and applies to all products sold, offered for sale or distributed in Maine.

As of Jan. 1, 2030, Maine's PFAS in Products Law prohibits selling, offering for sale or distributing any product containing "intentionally added PFAS" – a term the statute defines as any "PFAS added to a product or one of its product components to provide a specific characteristic, appearance or quality or to perform a specific function" – unless the Maine Department of Environmental Protection (Maine DEP) "has determined by rule that the use of PFAS in the product is a currently unavoidable use." 38 M.R.S.A. §§ 1614(1)(D) and (5)(D).

Maine's PFAS in Products Law defines a "currently unavoidable use" (CUU) as any "use of PFAS that the department has determined by rule under this section to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available." 38 M.R.S.A. § 1614(1)(B). The Maine DEP announced on Jan. 4, 2024, that it has started to accept proposals for CUU determinations.

According to the Maine DEP, CUU determinations must be made through major substantive rulemaking, meaning that they must first be adapted by the Board of Environmental Protection and then be submitted to the legislature for review. Anyone seeking a CUU determination from the Maine DEP must submit a proposal for the determination before March 1, 2024. The requirements for any such proposal can be found on the Maine DEP website.

The Maine DEP stresses that seeking a CUU does not exempt manufacturers of any product "that contains intentionally added PFAS" from their obligation under Maine's PFAS in Products Law to notify the agency of the identity of the product and the amount of it sold annually in Maine, the purpose of the PFAS in the product, the amount of each PFAS in the product, the manufacturer's contact information and any additional information that the agency may by rule seek. 38 M.R.S.A. § 1614(2)(A). The required notification must be given to the Maine DEP by Jan. 1, 2025. 38 M.R.S.A. § 1614(2)(D). The Maine DEP could waive all or part of this notification requirement for a product if the agency "determines that substantially equivalent information is already publicly available." 38 M.R.S.A. § 1614(3). The agency may also "extend the deadline for submission by a manufacturer of the information required" if the agency "determines that more time is needed by the manufacturer to comply with the submission requirement." 38 M.R.S.A. § 1614(3). The statute was amended once, in 2023, to extend the deadline for this notification by two years, from Jan. 1, 2023, to Jan. 1, 2025. While the earlier deadline was in effect, the Maine DEP issued approximately 2,500 extensions.

Maryland

As of Jan. 1, 2024, Maryland prohibits food packages, rugs or carpets, and – with certain exceptions – firefighting foam that contain intentionally added PFAS from being manufactured, or knowingly sold, offered for sale or distributed in the state. For each of the regulated products, the term "intentionally added" means "deliberately using a chemical in the formation" of the product when "the chemical's continued presence is desired" in order for the finished product to have a specific characteristic. Md. Envir. Code §§ 6-1601(c) and 9-1901(d). A "food package" is broadly defined to be "a package that is designed and intended for direct food contact" but must in all cases be composed, in substantial part, of paper, paperboard, or other materials originally derived from plant fiber …." Md. Envir. Code §§ 9-1901(c).

Minnesota

As with Maine, Minnesota has two statutes regulating PFAS. The first, enacted in June 2019, regulates food packaging. M.S.A. § 325F.075 et seq. The second (Minnesota's PFAS in Products Law), enacted in July 2023, covers all products containing PFAS. M.S.A. § 116.943 et seq. Minnesota's PFAS in Products Law defines CUU just as Maine's does and, as with Maine's law, requires that CUU determinations be made by rule. M.S.A. § 116.943 Subd. 1(j) and § 116.943 Subd.(c). But Minnesota's PFAS in Products Law authorizes the commissioner of the Minnesota Pollution Control Agency (MPCA) to make the rule for any CUU determination and does not involve the legislature. Minnesota does not ban products containing PFAS without a prior CUU determination from being sold, offered for sale or distributed in Minnesota until Jan. 1, 2032. Unlike Maine's law, Minnesota's PFAS in Products Law expressly names 11 categories of consumer products for which the MPCA commission "may not determine that the use of PFAS in a product is a currently unavoidable use …." M.S.A. § 116.943(c). In a notice released on Dec. 8, 2023, and published in the Minnesota State Register on Dec. 18, 2023, the MPCA requested comments on its planned new rules for CUU determinations. 48 SR 575 (Dec. 18, 2023).

Rhode Island

When it was originally enacted on June 29, 2022, the provision of the Rhode Island Toxic Packaging Reduction Act that sought to prohibit manufacturers or distributors from offering for sale or promotion in the state any "food package" to which PFAS had been intentionally introduced during manufacturing or distribution set Jan. 1, 2024, as the effective date for the prohibition. On June 22, 2023, Rhode Island amended the statute to make July 31, 2024, the date on which the prohibition will become effective. R.I. Gen. Laws § 23-18.13-4(d).

Rhode Island's statute does not limit the "food package" to which this prohibition will apply to packaging originally derived from plant fibers but instead defines the term broadly to include "any package or packaging component that is applied to or in direct contact with any food or beverage." R. I. Gen. Laws § 23-18.13-3(4).

Rhode Island also defines the term "intentional introduction of PFAS" broadly. The intentional introduction of PFAS is defined to be "deliberately utilizing PFAS in the formulation of a package or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality" – but Rhode Island's statute continues to provide that "use of a regulated chemical as a processing agent, mold release agent or intermediate" shall be considered the intentional introduction of PFAS "where the regulated chemical is detected in the final package or packaging component." R. I. Gen. Laws § 23-18.13-3(6)(i).

Until July 1, 2027, using recycled materials to manufacture new packaging materials that "may contain amounts of the regulated chemicals" that are "neither desired nor deliberate … is not considered intentional introduction" under the statute as long as the "final package or packaging component is in compliance with the prohibition set forth at § 23-18.13-4(d)." R. I. Gen. Laws § 23-18.13-3(6)(iii).

Washington

For food packaging comprising paper or other materials originally derived from plant fibers, Washington enacted in 2018 a statute that, beginning on Jan. 1, 2022, stated that "no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state food packaging to which PFAS chemicals have been intentionally added in any amount." R.C.W.A. 70A.222.070. For any product that would be subject to it, this prohibition cannot take effect until "supported by feedback from an external peer review of the department's alternatives assessment." The Washington Department of Ecology (WDOE) identifies the availability of safer alternatives and publishes its findings by submitting them to the legislature. R.C.W.A. 70A.222.070(1). Once the WDOE has done so, the prohibition authorized by the statute takes effect two years after the submittal to the legislature of the report finding a safer alternative. R.C.W.A. 70A.222.070(5).

In accordance with this regulatory scheme, two years after the WDOE published in February 2021 its first food packaging alternatives assessment, which covered four types of food packaging – specifically wraps and liners, plates, food boats and pizza boxes – any amount of intentionally added PFAS was prohibited from this food packaging as of February 2023. The assessment can be found on the WDOE website.

More food packaging will soon be subject to the same prohibition. In May 2022, WDOE published its second assessment of food packaging alternatives. This assessment found safer alternatives to any amount of intentionally added PFAS in five kinds of food packaging: 1) bags and sleeves, 2) bowls, 3) flat serviceware, including plates and trays, 4) open-top containers, such as french fry cartons and food cups, and 5) closed containers. Accordingly, in May 2024, no amount of intentionally added PFAS is allowed to be in these sorts of food packaging in Washington.

Some manufacturers facilitate manufacturing by using aids to prevent their products from adhering to equipment during manufacturing. These aids to the manufacturing process may contain amounts of PFAS, but neither the process aid nor the PFAS in it are used to benefit the product. As with California's statute, but unlike statutes enacted by other states that regulate manufacturers who have "intentionally added" PFAS to their products, Washington's statute does not define the term "intentionally added" and does not exempt from the scope of its prohibition products in which PFAS may only be incidentally present. As a result, manufacturers of the sorts of food packaging products now regulated by Washington should assume that Washington's statute may be taken literally when it prohibits for use in the state "food packaging to which PFAS chemicals have been intentionally added in any amount."

Conclusion

As Holland & Knight reported in its previous alert, "PFAS Food Packaging Regulations Boil Over: Time to Develop a Compliance Plan," June 29, 2023, numerous states targeted food packaging for PFAS regulation, but other product bans are also being phased in. Only time will tell how these various state actions will play out across the economy.

For more information or questions, please contact the authors or another member of Holland & Knight's Environmental Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.