Different regulatory definitions for PFAS products

Consumer product regulations regulating per- and polyfluoroalkyl substances (“PFAS”) have proliferated in the United States over the past several years, but have not been consistent. States have enacted numerous consumer product regulations addressing PFAS, using a variety of approaches that often focus on regulating any intentionally added PFAS in products, but may also regulate specific amounts of PFAS based on total organic fluorine content (including for some products in California and Vermont).

Despite increased awareness of the potential for overregulation, there remains a risk of unintended consequences resulting 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 significant benefits to consumers, and that may have few viable substitutes. In addition to the complexity of determining which PFAS are regulated under state law, states adopt slightly different definitions for regulated products and different compliance deadlines. As new PFAS regulations continue to be enacted, companies will need to review them carefully to determine whether their products can be regulated.

Is my product regulated?

States have taken the lead in regulating PFAS found in carpets, rugs, textiles, clothing, cookware, baby products, cosmetics, menstrual products, ski wax, fabric treatments, food packaging, oil and gas products, and furniture. Just as the definitions used for PFAS vary by jurisdiction, so do the definitions for these product categories, making it difficult for manufacturers to immediately determine whether state regulations may apply to their products.

Outfit

New York defines “apparel” as “items of clothing designed for everyday wear or formal occasions, including, but not limited to, underwear, shirts, pants, skirts, dresses, jumpsuits, bodysuits, vests, dancewear, suits, saris, scarves, tops, leggings, leisurewear, formal wear, outerwear, coveralls, bibs, and diapers.”(1) California takes a broader perspective by including apparel in its definition of “textile articles,” which includes “goods of a kind that are customarily and commonly used in households and businesses.” This includes clothing, accessories, handbags, backpacks, drapes, shower curtains, furniture, upholstery, bedding, towels, napkins, and tablecloths.(2) Colorado, Connecticut, Maine, and Vermont also have slightly different definitions of “apparel” and “textile articles,” which could impact the regulation and timing of various consumer products sold in those states. This highlights the need to analyze each category of regulated products to determine whether the products are regulated.

Kitchen dishes

Under Colorado law, “kitchenware” means “a durable household product that is used in homes or kitchens for preparing, serving, or storing food or beverages.”(3) This includes “pots, pans, griddles, grills, baking sheets, baking dishes, trays, bowls, and cooking utensils.” However, this definition does not include food equipment intended for use in a commercial setting or food equipment sold to a business licensed to conduct retail food business.(4) In California, cookware includes items used “in homes and restaurants.”(5) Additionally, under California law, manufacturers of cookware that contains intentionally added PFAS on the “product handle or on any surface of the product that comes into contact with” food or beverages must include a statement on the product label indicating the presence of these chemicals.(6) This is a reminder for businesses to consider the intended purchaser of their product and to be aware that the same product may be regulated for PFAS differently in different states. Cookware containing PFAS is also subject to current or future regulations in Maine, Vermont, Connecticut, and Minnesota.

Cosmetics

In Vermont’s recent PFAS law, “cosmetics” are defined as “articles or components 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 the purpose of cleansing, enhancing attractiveness, or improving or altering the appearance, including those intended for use by professionals.”(7) However, soaps, dietary supplements, and FDA-approved products are excluded. Colorado’s definition is similar, but offers an exception only for products that require a prescription for distribution or dispensing.(8) Colorado also includes a list of personal care products that are not always considered 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 include articles intended for use as a component of such an article.(9) California, Oregon, Maine, Maryland, and Washington have also passed laws regulating PFAS in cosmetics and personal care products.

Products for children

In Minnesota, the term “children’s products” refers to products “designed or marketed for use by infants and children under 12 years of age.” (10) This includes “an infant or toddler foam pillow; a bassinet, crib; a booster seat; a changing table; a child restraint system for use in motor vehicles and aircraft; a crib mattress; a high chair; a high chair cover; an infant bouncer; an infant carrier; an infant seat; an infant sleep positioner; an infant swing; an infant travel cot; an infant walker; a crib; a nursing pad; a nursing pillow; a play mat; a playpen; a polyurethane foam mat, pad, or cushion; a portable foam nap mat; a portable infant lounger; a portable chair with hooks; a soft portable crib; a stroller; and a mattress for small children.” However, this definition does not include electronic products for children or mattresses for adults.

The definitions of children’s products in California and Colorado are largely identical, but additionally exclude “internal ingredients of a children’s product that are not expected to come into direct contact with the child’s skin or mouth during foreseeable use and abuse of the product.”(11) Maine, Connecticut, Oregon, and Vermont have also passed regulations regulating the presence of PFAS in children’s products.

Navigating the Maze

Companies are increasingly having to navigate the maze of state PFAS regulations, which may require a comprehensive review of all potentially applicable regulations. This may also include considering potential exemptions, including in Maine and Minnesota, for currently unavoidable uses of PFAS. A “currently unavoidable use” means a use of PFAS that has been determined by the appropriate state environmental protection agency to be “essential to the health, safety, or functioning of the public and for which alternatives are not reasonably available.” (12) Both Maine and Minnesota are continuing to work on rulemaking to identify specific currently unavoidable uses of PFAS. Maine expects to publish a draft rule in mid-summer 2024. Other states, such as Washington, are taking a different approach. In its May 2024 report, Washington State reviewed clothing containing PFAS under its Safer Products Program.(13) In its report to the Washington State Legislature, the Washington State Department of Ecology found that clothing containing PFAS “does not meet (Washington State’s) minimum safety criteria.”(14) Washington State regulators then identified alternatives to PFAS, including chemical alternatives, process alternatives, and material alternatives, to attempt to demonstrate that manufacturers can achieve oil- and liquid-resistant barriers without the use of PFAS.

(1) NYCL, National Environmental Protection Law §37-0121(4)(b).

(2) 13.5 California Health and Safety Code § 108970.

(3) Code of Civil Procedure § 25-15-603(4)(a).

(4) Code of Civil Procedure § 25-15-603(4)(b)–(c).

(5) 15 Inch. Health & Safety. Code § 109010(a).

(6) 15 California Health and Safety Code § 109011(a).

(7) 9 VSA §2494a(2). This chapter shall become operative on January 1, 2026.

(8) See CRS § 25-15-603(5)(c). There is an exception for hydrofluoroolefins used as propellants in cosmetics, but it expires January 1, 2027. See ID. §25-15-603(5)(d).

(9) Section 116.943(i) of the MRS Act.

(10) ID. § 116.943(m).

(11) 12.5 Inch Health & Safety. Code § 108945(c)(2)(C); CRS §25-15-603(13).

(12) See 38 § 1614(1)(B) § 116.943(j) …

(13) View in general Washington State Department of Ecology, Technical Support Documentation for Regulatory Arrangements Report for the Legislator (May 2024).

(14) ID. at 10 o’clock.

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