In August 2021, we wrote about a first-of-its-kind law introduced in Maine that banned intentionally added PFAS from any products sold in the state of Maine. Now, a New York PFAS products bill aims to mimic the Maine law and implement a ban on intentionally added PFAS in products manufactured in New York. Like with the Maine law, it is also important to note that the New York bill will not completely curtail PFAS products sales in New York. In fact, a closer look at the language in the bill shows that some over-broad or vague terms may provide companies with opportunities to permissibly continue selling PFAS-containing products within the state. Nevertheless, it is critical for companies to immediately assess the impact of the New York PFAS products bill on corporate practices, compliance with the language in the bill, and make decisions regarding the continued use of PFAS in products, as opposed to substituting for other substances.  At the same time, companies impacted by the New York PFAS legislation must be aware that the bill poses risks to the company's involvement in PFAS litigation in both the short and long term.

New York PFAS Products Bill – What Does It Aim To Do?

Several states have already taken steps to ban PFAS use in certain specific products, including firefighting foam, food packaging, and ski wax, to name a few. The New York PFAS products bill (A8491), however, goes well beyond carving out PFAS bans for individual products. Instead, the bill bans PFAS from all products of any kind.

The PFAS ban proposed for New York does provide several reporting requirements for manufacturers in the state. It also specifically requires phase-outs of the use in PFAS in either 2024 or 2030, depending on certain factors. Carpets/rugs, cookware, cosmetics, fabric treatment and personal care products are all explicitly mentioned as product types that would be subject to the PFAS ban; however, the proposed bill also indicates that additional products can be specified at the discretion of the state.

The law enables the state to levy fines, grant extensions, give permission to report on a product category instead of individual products and collaborate with other jurisdictions to obtain disclosures.

Issues That Could Arise

As with many state bills that have passed seeking to ban PFAS from various products, New York’s bill uses language that bans “intentionally added PFAS” from products. But what is an “intentionally added” PFAS?  In some instances, this may be obvious. Many products, though, do not have “intentionally added” PFAS, so would seemingly not fall within the ban imposed by New York. For example, a toy manufacturer who purchases a PFAS-containing paint product from another company to coat the toys. The PFAS used by the toy manufacturer was not “intentionally added.” It may have been by the paint manufacturer, but will the state be able to enforce the ban against the toy manufacturer if the company did not utilize the PFAS for one of the reasons in New York’s definition of “intentionally added”? Hundreds, if not thousands, of examples like this, abound in commerce, and there is not yet a clear answer on this. In the short term, this may lead to company uncertainty and confusion over compliance.  In the long term, it could result in legal challenges to the law.

In addition, New York provides a carve-out for PFAS uses in products that the state deems that the PFAS use is “unavoidable.” This term is defined in the proposed bill as “…PFAS that the Department has determined to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” The is subjectivity in this definition that would allow the state to make case-by-case determinations as to what are avoidable versus unavoidable uses. This will again create uncertainty among companies, and could in fact lead to varying results among very similar products – a result that could lead to legal challenges.

Finally, New York’s PFAS products bill mirrors Maine as two of the most far-reaching in that they seek to regulate all 9,000+ types of PFAS in all products sold within state borders. Only Maine has enacted a PFAS law that regulates all PFAS substances so broadly. It remains to be seen whether trade associations, such as the American Chemistry Council, will challenge the proposed bill.

Implications To Businesses From The New York PFAS Legislation

It is of the utmost importance for businesses along the whole supply chain to evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate these compounds. One major point of contention among members of various industries is whether to regulate PFAS as a class or as individual compounds.  While each PFAS compound has a unique chemical makeup and impacts the environment and the human body in different ways, some groups argue PFAS should be regulated together as a class because they interact with each other in the body, thereby resulting in a collective impact. Other groups argue that the individual compounds are too diverse and that regulating them as a class would be over-restrictive for some chemicals and not restrictive enough for others.

Companies should remain informed so they do not get caught off guard. Regulators at both the state and federal level are setting drinking water standards and notice requirements of varying stringency, and states are increasingly passing PFAS product bills that differ in scope. For any manufacturers, especially those who sell goods interstate, it is important to understand how those various standards will impact them, whether PFAS is regulated as individual compounds or as a class. Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long-term savings for companies and should be commonplace in their own risk assessment.