The Nickel Report

States across the country continue to add to the growing patchwork of restrictions for per- and polyfluoroalkyl substances (PFAS) in products, posing challenges for those who manufacture, distribute, and sell products in the U.S. In 2024 alone, states introduced nearly 250 bills addressing PFAS, including restrictions for PFAS in products. Thirteen states have already enacted laws regulating PFAS in products, including (as previously reported) Minnesota and California. In the past few months, Maine, Colorado, Connecticut, Vermont, and Rhode Island have joined the list, each with its own unique and nuanced set of requirements, deadlines and exemptions. The variations in these state laws presents a complicated compliance matrix, necessitating an informed and strategic approach, particularly for companies navigating the complexities of extensive, global supply chains. Below, we provide our analysis of these new laws that companies selling products in these states should be aware of.

Maine’s LD 1537

On April 16, 2024, the Governor of Maine signed into law LD 1537 which significantly scales back LD 1503, the state’s prior ban and reporting requirements for products containing intentionally added PFAS.

• Reporting Requirements Significantly Scaled Back and Delayed Until 2032

LD 1537 eliminates the prior reporting requirement for all products containing intentionally added PFAS sold in the state of Maine. Companies were originally required to report to the state by January 1, 2023; but, due to significant concerns by the Maine Department of Environmental Protection (DEP) about implementation of this requirement, the legislature had moved the reporting deadline to January 1, 2025. Now, LD 1537 extends this deadline to January 1, 2032. Further, the law now only requires reporting for products containing intentionally added PFAS that DEP deems to be “currently unavoidable uses” rather than all products. Manufacturers that employ 100 or fewer people are also now exempt from reporting.

• Reporting Standard Established

The law also establishes that reporting is only required to the extent the information is “known to or reasonably ascertainable” by the submitter. “Known to or reasonably ascertainable by" means, with respect to a person, all information in the person's possession or control as well as all information that a reasonable person similarly situated might be expected to possess, control or know. Maine directly borrowed this term from the federal Toxic Substances Control Act (TSCA)’s reporting standard for its broad PFAS reporting rule (for more details about this reporting standard, see our blog post about the TSCA PFAS rule).

• “Currently Unavoidable Uses” Further Defined

“Currently unavoidable uses” of PFAS (which are subject to the reporting requirement) means a use of PFAS that DEP has determined by rule to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available. The law now clarifies that "essential for health, safety or the functioning of society" means use of 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: (1) a significant increase in negative health outcomes; (2) an inability to mitigate significant risks to human health or the environment; or (3) a significant disruption of the daily functions on which society relies.

The law also clarifies that “alternative” means a substance that, if used in place of a PFAS in a product, would result in a functionally equivalent product and would reduce the potential for harm to human health or the environment, or that has not been shown to pose the same or greater potential harm to human health or the environment as the PFAS. This includes a reformulated version of a product in which the intentionally added PFAS has been removed and changes to a product's manufacturing process that result in the removal of the PFAS from the product.

Currently unavoidable uses are exempt from the prohibitions of the rule for five years from the effective date or within five years of the currently unavoidable use determination, whichever is longer.

• Series of Product Bans, Followed by Ban for All Products Containing Intentionally Added PFAS, Including Fluorinated Containers

The law maintains Maine’s current prohibition on carpets or rugs containing PFAS (which was effective January 1, 2023) but adds exemptions to this ban, including but not limited to, rugs or carpets solely for outdoor use and artificial turf. Fabric treatments containing PFAS also continue to be banned (effective January 1, 2023), and the law clarifies that even if fabric treatment does not contain PFAS, the product is still banned if it is sold or distributed in a fluorinated container or a container that otherwise contains intentionally added PFAS.

Maine will ban the following products containing intentionally-added PFAS starting on these respective dates. Notably, the bans also apply to the listed products if they are in fluorinated containers (even if the product inside the container does not contain PFAS).  

• Broad Exemptions

The law also creates new exemptions from the law for the following products that contain intentionally added PFAS:

• Products for which federal law governs the presence of PFAS (carried over from original law)
• Packaging except when the package is the product of the manufacturer (carried over from original law). This exemption is not applicable to the package of a product that is prohibited from sale if the package is a fluorinated container or container that otherwise contains intentionally added PFAS
• Semiconductors, including equipment and materials used in manufacturing
• Used product or used product component
• Firefighting or fire-suppressing foam
• 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
• Watercraft
• Non-consumer laboratory equipment or electronics
• Equipment directly used in the manufacture or development of the above-exempted products
• Firefighting foam
• Used products or product components
• Retailers are exempt from the bans unless the retailer has received a notification that the sale of the PFAS-containing product is prohibited

Colorado SB 24-081

On May 1, 2024, the Governor of Colorado signed into law SB24-081, which expands the state’s current restrictions on products containing intentionally added PFAS (Colorado already has promulgated restrictions for PFAS in carpets and rugs, fabric treatments, food packaging, juvenile products, oil and gas products, textile furnishings, upholstered furniture, and cosmetics). The new law adds the following products to Colorado’s list of prohibitions:

• Exemptions

The law also creates new exemptions for the following products that contain intentionally added PFAS:

• Medical devices, drugs, biologics or diagnostics used in a medical setting or in medical applications regulated by the FDA
• Veterinary pesticide and parasiticide products approved by EPA or USDA
• Packaging used for these exempted products

Connecticut SB 292

On June 5, 2024, the Governor of Connecticut signed into law SB 292. The law imposes restrictions on the following products containing intentionally added PFAS:

Vermont S.25

On May 30, 2024, the Governor of Vermont signed into law S.25, repealing the previous law addressing PFAS in various products and enacting a broader product ban in its place. The law imposes restrictions on the following products:

Rhode Island S. 2152

On June 26, 2024, the Governor of Rhode Island signed into law S. 2152, the Comprehensive PFAS Ban Act. This law prohibits intentionally added PFAS in various products sold in the state, as outlined below:

Tracking State PFAS Restrictions

The Hunton Andrews Kurth PFAS in Products State Law Tracker is a publicly accessible tool to help companies track state statutes and regulations that ban or impose reporting or disclosure requirements for products containing PFAS. As states continue to increase requirements for products containing PFAS, companies seeking to maintain compliance and competitive advantage should pursue a multi-pronged PFAS strategy to monitor and become familiar with these rapidly emerging laws, educate internal business teams to raise awareness of the requirements, engage in legislative and regulatory advocacy to seek necessary exemptions,  assess the presence of PFAS in their supply chains, document compliance efforts, and consider customer communication strategies. Because legislatures will continue to amend existing laws and adopt new ones, businesses should also consult knowledgeable counsel for more comprehensive information on relevant state laws.

For more information, contact Hunton’s Chemicals Team.