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States Increasing Regulation of PFAS Products Heralds Increased Litigation

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More and more state legislatures are looking to PFAS exposure as one of the main focuses of their new environmental regulations. As of this month, Maine banned the sale of residential carpets containing PFAS and became the first state to require companies to report products containing the chemicals. Maine’s law will ban all non-essential PFAS products by 2030. In November, the Maine State Chamber of Commerce told the state Department of Environmental Protection that the new laws would affect nearly every sector of the state economy, including retail, healthcare, construction and agriculture.

In Washington and Vermont, companies can no longer sell or use food packaging—such as wrappers and pizza boxes—that contain PFAS. Vermont’s ban on ski waxes with the chemicals begins in July. Eleven states have passed laws to eliminate PFAS in food packaging.

New York is one of these states—its new law mandates that no person shall distribute, sell, or offer for sale such packaging containing PFAS substances as intentionally added chemicals. Unlike Maine, New York’s law only prohibits PFAS intentionally added to the packaging for a particular purpose. It does not cover PFAS that might be accidentally introduced during the manufacturing process.

Food packaging covered by New York’s law includes packages or packaging components intended for direct food contact that are comprised mainly of paper, paperboard, or other materials originally derived from plant fibers. The term “package” includes items such as carrying cases, crates, cups, pails, trays, wrappers, bags and tubs. As an example, any packaging or other container used for food service is subject to the law, e.g., cardboard boxes used for pizza, pastry boxes, sandwich wrappers, soup cups, etc. Consumer goods such as packages of paper plates, cups, or bowls that are distributed, sold, or offered for sale at retail locations are also covered under this law.

The law does not cover packaging made from glass, metal, plastic or other materials not originally derived from plant fibers.

Under New York’s law, retailers and food-service establishments need to determine whether the packaging items they offer to the public comply with this law and do not contain any intentionally added PFAS. In in doing so, they may rely upon a written certification of compliance provided by the distributor or manufacturer of the items. The certification must state that the specified packaging at issue complies with the law and also be signed by an authorized official of the manufacturing or distributing company.

Regulatory bodies are not the only ones taking a keen interest in PFAS. Since 2021, more than a dozen lawsuits alleging consumer fraud have been filed against companies for PFAS exposure. The number of cases filed has grown since last June, when the EPA issued a safe-consumption level well below current detection limits for two PFAS chemicals found in drinking water.

Several household-name chain restaurants have taken note of this new regulatory and litigation environment, promising to phase out PFAS in food packaging entirely. If your business involves the supply of products that do or might contain PFAS, it’s critical to ensure that your organization is complying with any new laws relevant to your operating areas, or whether a complete phase out of PFAS is possible for you. An easy first step is to seek guidance from counsel and environmental consultants to help conduct internal company audits that are protected by attorney-client privilege to help avoid pitfalls such as future violations, penalties, and litigation.