New Mexico to Hold Webinar on PFAS Labeling on September 25

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On September 25, 2025, the New Mexico Environment Department (NMED) will hold an informational webinar on product labelling requirements for PFAS at 1pm MT (3pm ET).  To register, email NMED-PFAS@env.nm.gov.

Under HB212, enacted in April 2025, NMED is authorized to adopt rules requiring that manufacturers label products containing PFAS.  Earlier this month, New Mexico’s Environmental Secretary reportedly told lawmakers that NMED would soon release draft regulations to implement HB 212, including labeling requirements.

PFAS Restrictions and Reporting Under HB 212
  • Labeling authority: NMED may require PFAS labeling.
  • Phased bans: Restrictions on intentionally added PFAS begin in 2027, expand to more product types in 2028, and culminate in a ban on most products in 2032. Exemptions apply for certain products, such as medical devices, and for uses designated by NMED as “currently unavoidable.”
  • Reporting requirement: By January 1, 2027, manufacturers must report information on intentionally added PFAS, including purpose of use and amount (by CASRN).

More details are available on NMED’s PFAS webpage.

Verdant Law to Lead ACA Webinar on FTC’s “Made in the USA” Enforcement

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Verdant Law is pleased to announce that Phil Moffat and Irene Hantman will lead an American Coatings Association (ACA) webinar on the FTC’s renewed focus on “Made in the USA” claims.  The session will be held on September 25, 2025, from 1–2pm ET.

Although the current Trump administration has generally adopted a deregulatory stance, “Made in the USA” claims have been a notable exception.  This past July, the FTC declared “Made in the USA Month” and announced stepped-up enforcement, including warning letters to major retailers such as Amazon and Walmart.

This webinar will provide insight to help attendees align marketing strategies with legal standards, avoid enforcement risks, and ensure “Made in the USA” claims are both effective and compliant.

Attendance is limited to, but free for, ACA members.  Register here.

Phil Moffat to Present at Chemical Watch Regulatory Summit North America 2025

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Verdant Law is pleased to announce that Phil Moffat will speak at Chemical Watch’s Regulatory Summit North America 2025, which will take place September 15–18 in Alexandria, Virginia.

On September 15 at 11:50 am, Mr. Moffat will present on the Trump administration’s implementation of the Toxic Substances Control Act (TSCA) New Chemicals Program.  At 12:40 pm, Mr. Moffat will join an extended Q&A panel titled “Stakeholder perspectives on new chemical trends.”

Registration for the summit is open for both in-person and virtual attendance.

Update – September 16, 2025

Slides from Mr. Moffat’s presentation, “Balancing Innovation and Risk Management: TSCA’s New Chemical Review Process,” are now available here.

Irene Hantman to Present at Chemical Watch Summit in September

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Verdant Law is pleased to announce that Irene Hantman will present on litigation over green marketing claims at Chemical Watch’s Regulatory Summit North America 2025.

Ms. Hantman’s September 18 presentation will cover noteworthy recent cases, including suits against manufacturers of everyday consumer products over alleged PFAS content.  The presentation will also discuss possible impacts from state-level PFAS disclosure laws, which may lead to a floodgate of new lawsuits.

Following the 3:05pm presentation, Ms. Hantman will be joined by other experts for a Q&A session.

The Regulatory Summit will be held in Alexandria, Virginia, from September 15–18.  Virtual attendance options are available.

Update – November 11, 2025

Slides from Ms. Hantman’s presentation, “Green Marketing Claims, PFAS, and Litigation,” are now available here.

Fifth Circuit Questions EPA’s Methylene Chloride Rule in Landmark TSCA Case

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On June 3, 2025, the Fifth Circuit heard oral argument in a case consolidating industry and Sierra Club challenges to EPA’s regulation of methylene chloride under the Toxic Substances Control Act (TSCA).  The panel generally appeared to doubt EPA’s justification for banning certain uses of the solvent and imposing stringent workplace restrictions.

The background for East Fork Enterprises Inc. v. EPA, No. 24-60256, is discussed in a previous blog post.  It looks likely that this will be the first case in which a court of appeals rules on the merits of a TSCA risk management rule since EPA was granted expanded authority to regulate existing chemicals with the 2016 Lautenberg amendments to TSCA.

Undefended Policies

The industry petitioners’ attorney urged the court to rule on two Biden-era policies that the Trump EPA has declined to defend: the agency’s decision not to assume that workers use PPE, and its “single determination” approach to findings of unreasonable risk.

One judge asked the industry attorney whether there had been any statistical surveys or epidemiological work to determine the number of workers affected by methylene chloride, suggesting that EPA should base its review in terms of “reality.”  The industry attorney replied that isolated incidents were noted in the record, but that they should be considered against the size of the country.  “That there have been a given number of incidents is not enough to tell you the scale of the risk,” he said.

When a judge suggested that EPA’s use of conservative “uncertainty factors” helps the agency extrapolate from human studies in a way that “protect[s] those…most at risk,” the industry attorney pushed back.  “The uncertainty factors are going far beyond that…it is protective factor times protective factor times protective factor, and they’re doing that in a part of the analysis that is quite separate from what they’re doing for vulnerable populations,” he said.

Another judge inquired about the economics of the methylene chloride industry, claiming that “it’s not irrelevant to understand what the scope of the market is” when determining whether a regulation is reasonable.

Scientific Evidence

To defend its decision to impose significantly stricter worker exposure limits than OSHA, EPA argued that OSHA’s standard was based on cancer findings, rather than “the most common adverse effect, adverse liver effects.”  This drew pushback from one judge, who claimed that liver effects had only been found in animals, not humans.

“If you’re going to really show that there’s toxicity to the liver, it seems to me that you have to show toxicity to the liver, and that requires epidemiological testing, doesn’t it?” the judge said.  “EPA is tasked with finding unreasonable risk, and unreasonable risk, from a scientific standpoint, when you’re talking about humans, is epidemiology.”

EPA’s attorney acknowledged that “human studies are the first place you look” but said that “when [EPA doesn’t] have concrete information, they have to look [to] animals.”  Earlier in the argument, EPA’s attorney noted that animal testing allows for dissection, unlike human studies—which she argued can make some effects, like the early stages of liver disease, more apparent.

Both EPA and Sierra Club also pointed to the Lautenberg amendments’ explicit directive that EPA consider worker risks as evidence that Congress did not intend for EPA to defer to OSHA’s existing limitations.

“I Survived”

In a notable exchange, one judge expressed concern with the breadth of the risk management rule: “It’s hard to say that any party can verify that they have never given a bit of methylene chloride to their friend who’s refinishing old furniture, a subject for which I’m particularly sensitive, because I’ve done it, and I survived.”

EPA’s attorney replied that the rule permits continued use of methylene chloride for furniture refinishing for another five years because no adequate alternative currently exists.  “This is not a case where EPA was just unilaterally deciding, ‘we don’t like this chemical, we’re going to regulate so there’s zero risk,’” she said.

EPA was also sharply pressed on the applicable standard of review.  “We noticed that EPA’s brief didn’t cite a single case that relied on the substantial evidence standard [used by TSCA] as opposed to the lower arbitrary and capricious standard,” a judge observed.

Sierra Club Arguments

The panel also appeared skeptical about the Sierra Club’s arguments, which claim that EPA’s regulations did not properly protect fenceline communities or address risks to the ozone layer.

“It’s a very, very, very, stringent regulation…I mean, what do you mean?” one judge asked.

When EPA noted that methylene chloride emissions are regulated under the Clean Air Act, one judge asked, “How does Sierra Club have a justification for coming in on this regulation at all, vis-à-vis fenceline communities, because this regulation does not cover ambient air emissions?”

EPA’s attorney responded that this was why risks to fenceline communities were not evaluated in the original 2020 risk evaluation for methylene chloride—though those risks were considered in a 2022 revision.

During rebuttals, the Sierra Club was also pressed about EPA’s one-in-a-million cancer benchmark.  “One in a million is pretty darn small…where’s the science that supports one in a million of anything being unreasonable?” one judge asked.

The Sierra Club’s attorney said that the benchmark was supported by the Science Advisory Committee on Chemicals (SACC), prompting the judge to respond, “We did a little looking at that, and it looked like some…members of the [SACC] had also themselves received EPA grants.”

But the Sierra Club argued that it does create a conflict of interest, because other members had been funded by methylene chloride manufacturers.  “I think EPA aims for a diverse range of views on the SACC,” its attorney said.

Irene Hantman Presents on TSCA Developments at A&WMA ACE 2025

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Verdant Law is pleased to announce that Irene Hantman presented at the Air & Waste Management Association’s (A&WMA’s) 118th annual conference and exhibition (ACE) on June 11, 2025, in Raleigh, North Carolina.

Ms. Hantman’s “TSCA 2025” presentation covered recent regulatory developments under the Toxic Substances Control Act (TSCA).  Topics included the framework rule for new chemicals, litigation over EPA’s risk management rule for trichloroethylene, and the section 8(a)(7) PFAS reporting rule.

In addition to outlining TSCA developments, Ms. Hantman provided a window into real-world compliance by discussing engagement with EPA regarding a significant new use rule (SNUR).  Throughout the presentation, she also touched on how TSCA implementation may continue to evolve under the current Trump administration.

If you have questions about the topics of the presentation, please contact Ms. Hantman.

Court Reinstates Suit Alleging Roundup “Expiration” Due to Impurity

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Allegations that Monsanto’s popular Roundup-brand weedkillers degrade into a carcinogenic impurity will proceed, after the Ninth Circuit reinstated a proposed class action a district court had dismissed for failure to state a claim.

Unlike the many personal injury suits over Roundup, the plaintiffs in this case assert purely economic harms.  They allege that consumers would have paid less for concentrated Roundup products had they known that glyphosate—the active ingredient—gradually degrades into harmful levels of N-Nitrosoglyphosate (NNG) over time from exposure to nitrites in “everyday air and water,” effectively causing the products to “expire.”

The District Court for the Northern District of California dismissed the case in December 2023, finding two key allegations implausible: that NNG is substantially certain to form at levels of 1 part per million (ppm), and that 1 ppm NNG is unsafe.

The Ninth Circuit disagreed, emphasizing that plausibility does not require probability.  While no regulation sets a specific 1 ppm limit for NNG, the panel found that an expert opinion combined with EPA statements sufficed to support a plausible claim regarding NNG’s hazard.

Similarly, although the complaint failed to allege that any products purchased by the plaintiffs or other consumers contained 1 ppm NNG, the court held that a variety of factual allegations—including that “Monsanto had discovered NNG at levels above 1 ppm in relevant products in its own possession”—were enough to make the plaintiffs’ claim about the occurrence of 1 ppm NNG plausible.

However, the Ninth Circuit affirmed the dismissal of claims against Roundup distributor The Scotts Co., finding that plaintiffs failed to allege that Scotts had “unbridled control” over the challenged conduct or knowledge of the alleged expiration.

The Ninth Circuit also criticized the lower court’s reliance on an incomplete version of a key study submitted by Monsanto, which likely presented findings in a more favorable light.  “The parties and the court should be concerned about submission of and reliance upon an incomplete document,” the opinion states.

The case is Koller v. Monsanto Co., No. 24-43, opinion filed March 27, 2025.

EPA’s PFAS Fluorination Rulemaking Survives Legal Challenge

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The D.C. District Court has dismissed a Toxic Substances Control Act (TSCA) citizen suit seeking to speed up the agency’s rulemaking on PFAS formation during plastic fluorination.  The court held that an EPA request for information satisfied TSCA’s requirement that the agency “initiate…action” within 180 days to mitigate “significant risk.”

The environmental groups behind Public Employees for Environmental Responsibility v. Regan, No. 24-2194, argued that TSCA section 4(f) required EPA to issue a rule prohibiting PFOA formation during fluorination within that timeframe.  However, the court ruled that EPA’s September 30, 2024, request for information—which sought details on the number and uses of fluorinated containers, alternatives to fluorination, and risk mitigation measures—was sufficient.

“That request plainly ‘initiate[d] . . . action’…by kickstarting the information-gathering process, and it therefore successfully completed the necessary first step of any rulemaking,” the December 11 opinion states.

The court also rejected the petitioners’ interpretation of TSCA section 7(a)(2), which they argued required EPA to seek injunctive relief  if an “imminently hazardous” chemical exists without a rule addressing it.  That provision only applies if EPA has implemented a rule that is not “immediately effective,” the court held.

Both petitioners were among the organizations who successfully petitioned for EPA to initiate a rulemaking after the Fifth Circuit struck down previous EPA efforts to regulate fluorination in April 2024.  They filed the suit in July, two weeks after EPA granted their petition and before the agency published its information request.

Industry Pushback

Meanwhile, Inhance Technologies—the fluorination company that won the Fifth Circuit case—is arguing that EPA must restart its rulemaking from scratch.  In December comments submitted on EPA’s information request, Inhance stated that EPA “cannot skirt the prioritization process” and “must conduct a new risk evaluation” if it wants to regulate fluorination—steps that take as long as 4.5 years under TSCA.

In addition, Inhance contends that EPA regulations require the agency to consider the subject PFAS under all their conditions of use, not just fluorination.  “EPA cannot pursue a…rule selectively targeting fluorination,” the comments state.

For more on PFAS formed in plastic fluorination and the Inhance saga, explore our archive of blog posts on the topic.

EPA’s TSCA Pre-Prioritization Webinar

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On September 30, 2024, a lead toxicologist in the Data Gathering Management and Policy Division within the Office of Pollution Prevent and Toxics presented an overview of prioritization and pre-prioritization efforts for existing chemicals under the Toxic Substances Control Act (TSCA). The Agency’s goal was to collaborate with attendees to evaluate the potential risks of existing industrial chemicals regulated under TSCA. Topics covered included a high-level overview of TSCA authorities, requirements, and timelines for evaluating existing chemicals. Additionally, EPA covered the Agency’s approach for identifying the chemicals that may undergo prioritization.

Under TSCA, EPA is required to evaluate the potential risks of chemical substances comprehensively, taking into account their cradle-to-grave life cycle. This process involves assessing the chemical’s potential exposure and risks from production through disposal and includes all identified uses.  First, the webinar touched on the key aspects for the Risk Evaluation process.

  • Cradle-to-Grave Analysis
    • 6-Year Timeline for Risk Regulation
      • Initiation and Prioritization: 9-12 months.
      • Risk Evaluation: 3 to 3.5 years.
      • Regulation Development: Remainder of the timeline as needed.
  • Public Engagement and Information Gathering

EPA then noted that the prioritization process reflects the Agency’s evolving approach to addressing chemical risks efficiently and inclusively under TSCA. EPA identified 27 chemical substances that are being considered for prioritization under TSCA, focusing on their inclusion in the 2014 TSCA Work Plan, the interests of other agencies, and the availability of hazard and exposure data. The 2014 TSCA Work Plan identified approximately 90 chemicals as priorities for risk evaluation based on hazards, exposure risks, and their environmental or health impact. In addition, three chemical substances that were not listed in the 2014 Work plan are being considered for prioritization Two of these chemicals were identified through TSCA Section 21 petitions:  Hydrogen fluoride (HF) and 6PPD.  Bisphenol S (BPS) is also being considered for prioritization.  The Agency explained that BPS could become a priority if bisphenol A (BPA) undergoes prioritization, as BPS is a key alternative to BPA in the market.

EPA reminded participants that the Agency uses Section 4 and Section 8 under TSCA to gather data on the chemicals for prioritization, risk evaluation, and risk management. TSCA Section 4 provides authority for mandatory testing of chemicals to fill data gaps through test orders, test rules, and consent agreements. TSCA Section 8 allows for reporting and recordkeeping of existing chemical-related data, including reports of significant adverse health or environmental reactions.

The Agency noted that it prioritizes chemicals with robust existing data to streamline risk evaluation and reduce delays caused by insufficient information. The inclusion of both 2014 TSCA Work Plan chemicals and newly highlighted substances reflects intent to address historical priorities while also adapting to emerging concerns raised by stakeholders or other agencies.

 

Work Plan Chemicals:

1-Hexadecanol
2-Ethylhexyl
tetrabromobenzoate (TBB)
4-tert-Octylphenol (4-(1,1,3,3-Tetramethylbutyl)-phenol)
Benzene
bis(2-Ethylhexyl) – 3,4,5,6-Tetrabromophthalate (TBPH)
Bisphenol A
Creosote
Di-n-octyl phthalate (DnOP)
Ethylbenzene
Naphthalene
N-Nitroso-diphenylamine
p,p’-Oxybis(benzenesulfonylhydrazide)
Styrene
Tribromomethane
Triglycidyl isocyanurate
m-Xylene
o-Xylene
p-Xylene
Antimony & Antimony Compounds
Arsenic & Arsenic Compounds
Cobalt & Cobalt Compounds
Lead & Lead Compounds
Long-chain chlorinated paraffins (C18-20)
Medium-chain chlorinated paraffins (C14-17)

Non-Work Plan Chemicals:

Bisphenol S
Hydrogen fluoride
N-(1,3-Dimethylbutyl)-N’-phenyl-pphenylenediamine (6PPD)

D.C. Circuit Rejects Environmentalist Arguments, Sides with Industry over TSCA CBI Rule

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EPA’s 2023 rule revising confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA) is only unlawful insofar as it could lead to certain inadvertent waivers of confidentiality by downstream entities, the D.C. Circuit ruled on December 20, 2024.

The case, Environmental Defense Fund v. EPA, No. 23-01166, consolidated petitions from the Environmental Defense Fund (EDF) and the American Chemistry Council (ACC).  EDF’s arguments in favor of narrower confidentiality protections were rejected by the court, whose ruling leaves EPA’s CBI rule largely intact.

However, the court agreed with ACC’s challenge to a provision in the rule that allowed downstream entities to waive CBI protections put in place by the upstream manufacturer when reporting information to EPA.  Specifically, ACC argued that the rule’s requirement that downstream entities assert and substantiate confidentiality claims for chemical identities reported via an “accession number” is arbitrary and capricious.  Under the CBI rule, if “any submitting entity fails to substantiate a confidentiality claim for a chemical identity…the chemical identity is no longer entitled to confidential treatment.”

Accession numbers are non-confidential identifiers assigned to chemicals whose identities are claimed as CBI.  Downstream entities reporting information to EPA using an accession number may have no knowledge of the chemical’s actual identity, the court noted, and may not have any incentive to keep it secret.  Nor would they necessarily have the information needed to adequately substantiate a claim, the opinion continues.

“This regulatory scheme cannot be squared with the commands of the statute, which require EPA to protect from disclosure chemical identities for which CBI claims have been properly assessed,” the court held, vacating the CBI rule “to the extent it allows for the unlawful disclosure of confidential information.”

Key Provisions are “Best Reading”

EDF challenged three provisions of the CBI rule.  The court rejected these challenges, explaining that EPA’s positions were  consistent with the “best reading” of the statute—the new legal framework adopted by the Supreme Court in Loper Bright v. Raimondo, the decision that struck down Chevron deference.

EDF argued that the rule’s use of “permissive” language and revised timeframe for when a CBI claim must first be substantiated were arbitrary and capricious.  However, the court found that the CBI rule sufficiently justified why those changes were necessary.  The permissive language at issue included a provision allowing EPA discretion in whether to disclose information that has lost CBI protection, unlike earlier regulations requiring its immediate and automatic release.

EDF also challenged the scope of the CBI rule’s definition of a “health and safety study,” which are statutorily ineligible for CBI protection.  EDF contended that the definition should include the entirety of any written report submitted to EPA that presents findings of a health and safety study, including information like the identity of the company submitting the report and the name of the lab that conducted the study—information which is currently eligible for CBI protection.  The court disagreed, holding that the statutory definition of health and safety study “suggest[s] that the term refers only to the evaluation of a chemical’s health and environmental effects, not the entire document containing that evaluation.”

More on the CBI rule can be found in a previous blog post.  An earlier post on this case, written after EDF filed its statement of issues, can be found here.