New Mexico PFAS Labeling Mandate Faces First Amendment Challenge in Federal Court

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A collection of trade associations has sued in federal court to block New Mexico’s PFAS labeling requirement for consumer products, arguing that the regulation violates the First Amendment and the dormant Commerce Clause.

The plaintiffs—including the American Chemistry Council, Alliance for Automotive Innovation, American Coatings Association, National Association of Manufacturers, and several other industry groups—filed their complaint on July 1, 2026, along with a motion for a preliminary injunction based solely on their First Amendment claim.  As it stands, the labeling requirement applies to nearly all products manufactured for sale in New Mexico on or after January 1, 2027.  While several other states have adopted PFAS labeling rules, none apply so broadly.

The federal suit follows a state-court challenge to the labeling requirement, which also alleges First Amendment violations.  That case, filed by a paint manufacturer in May, separately argues that the regulation violates state law because it exceeds statutory authority and imposes an impracticable labeling deadline.

Regulatory Background

New Mexico’s PFAS Protection Act, enacted in 2025, phases in prohibitions on products containing intentionally added PFAS and requires manufacturers to report their use of PFAS to the state.  The law defines PFAS broadly but exempts certain products from its requirements, including fluoropolymers.

In April 2026, following a rulemaking hearing, the New Mexico Environmental Improvement Board (EIB) approved regulations proposed by the New Mexico Environmental Department (NMED) to implement the Act, including a labeling requirement.  The mandated label consists of the term “PFAS” inside an Erlenmeyer flask symbol.  Notably, the statutory exemptions to the prohibitions and reporting requirements do not extend to the labeling mandate.

The First Amendment Claims

The plaintiffs’ First Amendment arguments center on which level of scrutiny applies.  Compelled commercial speech is ordinarily subject to heightened scrutiny, which the plaintiffs argue the labeling requirement cannot survive.  A lesser standard applies only to disclosures that are purely factual and uncontroversial, relate to the terms under which a product or service is offered, and are not unduly burdensome—the test established in Zauderer v. Office of Disciplinary Counsel.  In the preliminary injunction motion, the plaintiffs contend the label fails on every count.

Not purely factual.  The plaintiffs argue the Erlenmeyer flask symbol doesn’t convey factual information so much as a warning.  Commercial manufacturing doesn’t actually use Erlenmeyer flasks, they note, and there is ongoing scientific debate over which substances even qualify as PFAS.  Like a skull-and-crossbones for poison or a flame symbol for flammability, the flask is designed to signal danger, the filing argues.  While NMED testified that the flask tells costumers that the product contains a chemical “they might want to know about,” that interpretation “does not pass the straight face test,” since the state “does not require the Erlenmeyer flask graphic for any other chemical on the neutral theory that consumers ‘might want to know about’ it.”

Not uncontroversial.  The filing next argues that this warning is controversial because the risks associated with PFAS as a class are “at best unsettled.”  For example, the plaintiffs point to fluoropolymers, which they say are understood to present little to no risk when used in products.  To the extent that uncertainty exists on this point, they argue it does not help New Mexico, because it only suggests that the question is controversial.  “If the government wants to present its position concerning an unsettled scientific topic to consumers, then it must do so itself,” the filing states.

Not related to the consumer transaction.  The plaintiffs argue that any upstream or downstream harms associated with PFAS—including releases from manufacturing or disposal—fall outside Zauderer‘s scope because they don’t relate to the terms of the transaction with the consumer.

Unduly burdensome.  Finally, the plaintiffs assert that compliance will be extraordinarily costly and disruptive, potentially running into the hundreds of millions of dollars, in part because manufacturers with global distribution chains may need to relabel their entire product lines.

The motion for a preliminary injunction ends by requesting that the court, at a minimum, enjoin enforcement of the labeling mandate as applied to products only containing fluoropolymers or PFAS to which consumers will not be exposed.

The Dormant Commerce Clause Claims

The complaint also raises two Commerce Clause claims not included in the preliminary injunction motion.

The first argues that the regulation improperly reaches conduct entirely outside New Mexico.  No products containing intentionally added PFAS are manufactured in the state, the complaint notes, yet the mandate applies even when a manufacturer never directly transacts in New Mexico—for instance, when it sells to a third-party wholesaler that independently distributes there.  The plaintiffs argue this amounts to direct regulation of interstate commerce.

The second claims that the regulation’s burdens on interstate commerce exceed its local benefits.  In part because no products are manufactured with intentionally added PFAS in New Mexico, the complaint argues, the costs of compliance will fall almost entirely on out-of-state commerce.  New Mexico had less burdensome alternatives—like carving out fluoropolymers or eliminating the flask symbol—that would have a lesser impact, evidencing that the requirement is excessive, the complaint concludes.

The case is American Chemistry Council v. Kenney, No. 1:26-cv-2130 (D.N.M.), filed July 1, 2026.  A hearing on the preliminary injunction motion has been set for August 27, 2026, at 8:30 AM MT.

New Mexico PFAS Labeling Rule Faces Appeal Over Free Speech, Agency Authority

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A docketing statement has been filed in a state-court challenge to New Mexico’s near-universal PFAS labeling requirements, finalized by the New Mexico Environmental Improvement Board (EIB) in April as part of a broader rule implementing the state’s PFAS Protection Act (HB 212).

The docketing statement, filed June 22, 2026, identifies four issues on appeal:

  1. First Amendment. The rule requires manufacturers to affix a PFAS label—an Erlenmeyer flask bearing the term “PFAS”—to products containing any substance meeting HB 212’s definition of PFAS.  The appellant argues that the definition is among the broadest in use by any government or regulatory body, and “encompasses substances whose status as PFAS is subject to robust scientific debate, compelling businesses to make untrue and misleading claims on their products.”
  2. Exceedance of statutory authority—exemptions. HB 212 expressly exempts sixteen categories of products from its prohibitions and reporting requirements.  The appellant contends that the rule nevertheless requires labeling for most of those exempt products, extending the rule’s reach beyond the enabling statute.
  3. Arbitrary deadline. The rule requires labels on products manufactured on or after January 1, 2027, less than nine months after the rule’s adoption.  According to the appellant, relabeling requires packaging redesign, legal and regulatory review, coordination with printers and suppliers, and production schedule alignment.  The administrative record showed manufacturers need at least 18 months to comply, but the EIB arbitrarily rejected that evidence, the appellant argues.
  4. Exceedance of statutory authority—fees. The rule imposes fees for PFAS reporting submissions, currently unavoidable use applications, and label waivers.  The appellant contends that HB 212 does not grant the EIB authority to impose fees.

The case is Diamond Vogel, Inc. v. New Mexico Environmental Improvement Board, No. A-1-CA-43483 (N.M. Ct. App.), filed 05/22/2026.

New Mexico PFAS in Products Rule Appealed

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A legal challenge has been filed in state court against New Mexico’s PFAS in products rule, which was finalized last month.

As noted in a recent Chemical Watch article, concerns include product labeling issues and timelines that emerged during the rulemaking process.  The final rule’s labeling requirements apply to all products containing intentionally added PFAS manufactured on or after January 1, 2027, with narrow exceptions.

More details will become available after the appellant files a docketing statement, due within 30 days of the suit’s filing on May 22, 2026.  The notice of appeal can be found here.

For more on the rulemaking, view our New Mexico PFAS archive.

New Mexico Adopts Nation’s Most Far-Reaching PFAS Labeling Rules

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Update (April 23, 2026)

The final rule, as submitted to New Mexico State Records Center and Archives, is available here.  The final order and statement of reasons, dated April 17, can be found here.  The rule is slated for publication in the May 5, 2026, volume of the New Mexico Register.

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New Mexico has approved “universal” PFAS labeling requirements beginning in 2027, according to the New Mexico Environment Department (NMED).

The Environmental Improvement Board approved the requirements on March 23, 2026.  Although the final rule is not yet available, the final proposed rule requires the term “PFAS” inside an Erlenmeyer flask on all products containing intentionally added PFAS manufactured on or after January 1, 2027.  “PFAS” is broadly defined by statute to include all substances with at least one fully fluorinated carbon atom.

Only used products, pesticides, veterinary products, and medical devices and drugs are exempt from the labeling requirements.  Although the controlling statute includes additional exemptions from PFAS prohibitions and reporting requirements, the final proposed rule does not extend them to labeling.  Manufacturers may, however, request a labeling waiver if the product falls within one of the statutory exemptions and no PFAS will ever come into direct contact with a consumer.

The New Mexico legislature recently instructed NMED to make recommendations on whether those statutory exemptions should be modified or removed, including an exemption for fluoropolymers.

In addition to the labeling requirements, the adopted regulations will implement the statutory prohibitions and reporting requirements, which also begin in 2027.

Changes Made During Rulemaking

The final proposed rule’s labeling requirements substantially differ from the original proposal.  After commenters raised First Amendment concerns, NMED removed a requirement that manufacturers use labels with claims about the hazards of PFAS and link to a NMED webpage on PFAS.  In response to concerns about the practicability of labeling before January 1, 2027, NMED relaxed the deadline, allowing continued sale of unlabeled products manufactured prior to that date.  And, after commenters argued that certain products labels are preempted by federal law, NMED added the exemptions for pesticides, veterinary products, and medical devices.

Nevertheless, New Mexico’s PFAS labeling requirements are now the most far-reaching in the country.  Other states, like Connecticut, have adopted labeling requirements, but they only apply to a discrete selection of products.

California Bill Would Phase Out PFAS Pesticides, Require Label Disclosures

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California is considering legislation to phase out use, require labeling, and prohibit registrations of pesticides containing PFAS, defined as a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.

AB 1603 states that PFAS exposure “poses a significant threat to the environment and public health” and that their intentional use in pesticides is increasing.  The bill notes that EPA has approved 70 active ingredient PFAS pesticides, including 53 allowed for use in California by state regulators, and that a 2025 analysis found that approximately 2.5 million pounds of active ingredient PFAS pesticides are applied in California annually.

The bill would immediately prohibit the California Department of Pesticide Regulation (CDPR) from registering or re-registering pesticides with intentionally added PFAS as an active or inert ingredient, and would phase in the following additional requirements:

  • January 1, 2028: Prohibition on manufacturing, distribution, or sale unless labeled with the following statement: “This product contains perfluoroalkyl and polyfluoroalkyl substances, or PFAS, and can contaminate produce, groundwater, drinking water, soil, and the environment.”
  • January 1, 2030: Prohibition on using, manufacturing, selling, delivering, holding, or offering for sale pesticides with 23 specific intentionally added PFAS.
  • January 1, 2035: Blanket prohibition on using, manufacturing, selling, delivering, holding, or offering for sale pesticides with any intentionally added PFAS.

AB 1603 would also designate pesticides with intentionally added PFAS as a restricted material.  By January 1, 2028, CDPR would be required to prescribe the times and conditions under which such materials may be used or possessed across the state, with authority to prohibit use or possession in certain areas.  Use or possession would require a written permit from the county agricultural commissioner, and those permits and related public disclosures would be subject to the same label statement described above.

Any state labeling requirement must contend with the preemption provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which prohibit states from imposing labeling requirements “in addition to or different from those required under” the statute.  EPA does not currently require any label disclosure for pesticides containing PFAS.

AB 1603 was introduced on January 16, 2026.  The Assembly Committee on Environmental Safety and Toxic Materials will hold a hearing on the bill on April 14, 2026.

EPA: Single Fluorinated Compounds Aren’t PFAS

Late last year, EPA published a webpage pushing back on concerns about pesticides containing a single fluorinated carbon—the threshold for designation as PFAS under AB 1603.

“EPA-approved single fluorinated compounds are not forever chemicals, they are not PFAS, and do not pose any risks of concern when used as labeled,” the webpage states.

EPA emphasizes that, regardless of a pesticide’s contents, registration under FIFRA requires a determination that the product will not cause unreasonable adverse effects on human health or the environment.  The agency conducts “robust, chemical-specific” hazard and exposure assessments, “ensuring that every scientific aspect of these compounds is thoroughly evaluated before any registration decision is made.”  It conducts a similarly thorough evaluation when setting food tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA), which requires a “reasonable certainty of no harm,” EPA states.

EPA notes that pesticides containing a single fluorinated carbon can offer agronomic benefits and may replace more harmful alternatives, such as organochlorines.  The agency also points to the European Union, United Kingdom, Canada, and other jurisdictions that have registered or are considering registering pesticides containing a fluorinated carbon.

Michigan Bill Would Mandate PFAS Labeling for 13 Product Categories

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On March 4, 2026, Michigan lawmakers introduced legislation that would impose PFAS reporting and labeling requirements on manufacturers of 13 product categories.

Senate Bill 816’s reporting provisions would take effect first, prohibiting the manufacture or sale of covered products on January 1, 2028, unless prior notification is submitted to the state.  The labeling requirement—the phrase “Made with PFAS chemicals”—would apply one year later, on January 1, 2029.  Intentionally added PFAS in covered products would not be prohibited so long as the notification and labeling requirements are met.

PFAS is broadly defined as “all members of the class of fluorinated organic chemicals containing at least 1 fully fluorinated carbon atom.”  The bill grants the Michigan Department of Environment, Great Lakes, and Energy discretionary rulemaking authority to implement its provisions.

Covered Products

The bill covers the following product categories:

  • Apparel
  • Carpets and rugs
  • Cleaning products
  • Cookware
  • Dental floss
  • Fabric treatment
  • Children’s products
  • Menstruation products
  • Textile furnishings
  • Ski wax
  • Upholstered furniture
  • Turnout gear
  • Adult mattresses

These categories largely mirror those covered by Connecticut’s PFAS notification and labeling provisions, which take effect this July.

The bill excludes products manufactured before its effective date, which in Michigan is typically 90 days from the end of the session at which a bill is passed.  Also excluded are used products, products preempted by federal law, medical drugs and devices, and replacement parts for products manufactured before the effective date.  The bill does not apply to businesses with fewer than 10 employees.

Notifications and Labeling

Notifications would be required at least one month before a covered product’s release, including chemical identifiers, PFAS amounts and concentration ranges, and manufacturer contact information.  Manufacturers would be required to update notifications upon any change.

Labeling is established as a manufacturer responsibility unless a wholesaler or retailer agrees to assume it. The bill would require labels to be clearly visible prior to sale and sufficiently durable to remain legible for the product’s useful life.

New Mexico Lawmaker Calls for Review of PFAS Exemptions

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Update – February 26, 2026

HJM 3 passed the New Mexico Legislature on February 18, 2026.  Two days prior, NMED released a third version of the proposed rule.  This rebuttal proposed rule revises the required label content to only require the term “PFAS” within an Erlenmeyer flask and removes the requirement that manufacturers link to NMED’s PFAS webpage.

EIB conducted a hearing on the rulemaking this week and will deliberate on the proposal on March 6, 2026.  Public comments are due on that date.

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Ahead of the Environmental Improvement Board’s (EIB’s) February 23 rulemaking hearing on regulations to implement New Mexico’s PFAS Protection Act, a New Mexico lawmaker has introduced legislation that could prompt renewed scrutiny of the statute’s product exemptions, including the exemption for fluoropolymers.

Introduced on January 29, 2026, House Joint Memorial 3 (HJM 3) would direct the New Mexico Environment Department (NMED) to develop a report on the implementation of the PFAS Protection Act, including the “efficacy” of rules promulgated by EIB.  NMED would also be required to assess the health, environmental, and economic risks associated with the act’s exemptions and provide recommendations “regarding whether such exemptions, such as the exemption for fluoropolymers, should be continued, modified or removed.”

HJM 3 characterizes the exemptions as having been adopted “based on limited scientific literature regarding chemical degradation, environmental mobility and persistence, potential human health pathways and possible health effects.”  The memorial specifically calls for additional research into “the toxicological profiles, exposure risks and public health implications of fluoropolymers.”

This legislative development comes less than a year before product phaseouts and reporting requirements take effect on January 1, 2027—as well as controversial PFAS labeling requirements proposed by NMED that would apply to nearly all products, including those exempted from prohibition and reporting requirements by the statute.

The PFAS Protection Act provides that EIB “may…adopt rules to carry out” the act’s provisions, “including requiring the labeling of products in English and Spanish.”  HJM 3, however, states that the PFAS Protection Act “requires” PFAS labeling, “including [for] products exempted from the phaseout and prohibition.”  The memorial further asserts that the statute does not exempt “products from other aspects of [EIB’s] authority” beyond phaseout and prohibition.

Revised Labeling Provisions in NMED’s Proposed Rule

Labeling remains a central component of NMED’s proposed rule to implement the PFAS Protection Act.  NMED petitioned the EIB to adopt the rule in October 2025, and the proposal is the subject of the February hearing.

On January 16, 2026, in response to comments, NMED released a revised proposal with several notable changes to the labeling requirements.

First, the revised proposal would exempt the following products from labeling requirements:

  • Products for which labeling requirements are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),
  • Veterinary products and the packaging of veterinary products regulated by FDA, and
  • Medical devices, drugs, and the packaging of medical devices and drugs regulated by FDA.

Each of these product categories falls within exemptions included in the PFAS Protection Act.  However, the revised proposal does not extend labeling exemptions to other product categories that are exempt from prohibition or reporting requirements under the statute.

Second, the revised proposal eliminates the requirement that labels use “words and symbols approved by the department.”  Instead, the proposal would permit the following statements: “This product is made with PFAS,” “Made with PFAS,” or “Contains PFAS.”

NMED previously released draft labels containing health and environmental statements about PFAS.  While those labels may no longer be required, the proposal would still require product packaging to include a link to a New Mexico PFAS webpage, which currently makes health and environmental statements about PFAS as a class.

Third, the revised proposal adjusts the scope of the January 1, 2027, labeling effective date, allowing the continued sale and distribution of unlabeled products manufactured before that date.

Finally, the revised proposal clarifies the process for seeking waivers from labeling obligations and establishes associated fees.  The prerequisites for obtaining a waiver remain unchanged: for NMED to grant a waiver request, a product must be exempt from prohibition or reporting requirements and “none of the product’s material containing intentionally added [PFAS] will ever come into direct contact with a customer while the product is being used as intended during the useful life of the product.”

The EIB docket for the rulemaking can be found here.

New Jersey PFAS in Products Bill Awaits Governor’s Signature

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On December 22, 2025, New Jersey’s legislature passed SB 1042, which would restrict the use of intentionally added PFAS in cosmetics, carpet treatments, and food packaging, and impose additional labeling requirements for cookware.  If signed into law, New Jersey would join over a dozen states that have adopted similar restrictions.

The bill employs a familiar definition of PFAS: “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.”

Product Bans and Labeling Requirements

Two years after enactment, SB 1042 would ban the sale of the following products with intentionally added PFAS:

  • Cosmetics
  • Carpet or fabric treatments
  • Food packaging

In addition, two years after enactment, SB 1042 would require that cookware containing intentionally added PFAS in a handle or food contact surface include the statement “This product contains PFAS” on its product label.  This statement would be required in both English and Spanish and on online listings.

The bill provides the New Jersey Department of Law and Public Safety’s Division of Consumer Affairs significant enforcement authority, including civil penalties of up to $20,000 per day per violation and the ability to conduct random audits to ensure manufacturer compliance.

Exceptions and Exclusions

The bill includes several exemptions that may reduce compliance burdens for manufacturers:

  • Trace quantities: Intentionally added PFAS does not include “a technically unavoidable trace quantity of PFAS which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product or product component.”
  • Electronic components: The cosmetics prohibition and cookware labeling requirement do not apply to products containing PFAS only in electronic components or internal components.
  • Cookware: Cookware intended solely for commercial use are exempt. Cookware is also exempt from labeling if its surface area cannot accommodate a label of at least two square inches and it lacks an exterior container, wrapper, or tag.

Unlike some state-level PFAS legislation, SB 1042 does not establish specific limits on the amount of total organic fluorine in covered products.

Other Provisions

The bill directs the New Jersey Department of Environmental Protection (NJDEP) to:

  • Conduct PFAS research and environmental monitoring
  • Recommend additional product bans
  • Operate a source reduction program

The legislation appropriates $4.5 million for NJDEP to carry out these objectives.  NJDEP would be required to submit annual reports starting two years after enactment to summarize its findings.

More on SB 1042, known as the “Protecting Against Forever Chemicals Act,” can be found on the New Jersey Legislature’s website.

Update – January 18, 2026

On January 12, 2026, New Jersey Governor Phil Murphy signed SB 1042 into law.

Connecticut Releases Approved PFAS Label Language

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On December 1, 2025, the commissioner of Connecticut’s Department of Energy & Environmental Protection (DEEP) issued an order approving the following phrases that satisfy the state’s PFAS labeling requirements.  The approved language includes:

  • Contains PFAS
  • Made with PFAS
  • Made with PFAS chemicals
  • Made with intentionally added PFAS
  • This product contains PFAS chemicals

Manufacturers or producers can petition DEEP to approve other words or symbols.  Petitions must be submitted via email to DEEP.PFASInProduct@ct.gov.  Emails should include the proposed words or symbols, as well as the petitioner’s name, title, email address, and telephone number.

The order states that DEEP will publish and maintain an updated list of all approved labeling language on its PFAS in Products website.

Labeling Requirements

Beginning July 1, 2026, no person may sell or distribute certain products in Connecticut that contain intentionally-added PFAS unless the products include the required labeling disclosures.  A complete list of covered product categories can be found in a previous post.

Labeling is the responsibility of the manufacturer unless the wholesaler or retailer agrees to accept responsibility for their application.  Labels must:

  • Be clearly visible prior to sale
  • Use words or symbols approved by DEEP
  • Be sufficiently durable to remain legible for the product’s useful life

If a covered product is incorporated as a component of another product, the final product containing the component must be labeled.

Connecticut is not the only state that will soon impose PFAS labeling requirements.  Effective January 1, 2027, New Mexico has proposed to require labeling on all products containing intentionally added PFAS that are sold or distributed in the state.  More information on New Mexico’s proposed rule can be found here.

Massachusetts Introduces Comprehensive Children’s Product Chemicals Regulation Bill

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On November 10, 2025, a Massachusetts state senator introduced a bill that would create an extensive regulatory program to restrict the use of chemicals of concern—including PFAS—in children’s products sold in the state.

If enacted, SB 2660 would prohibit the use of intentionally added PFAS in children’s products above a total organic fluorine threshold set by the Massachusetts Department of Environmental Protection (MassDEP).  It would also allow MassDEP to screen chemicals, identify priority substances, and require their disclosure and eventual substitution in children’s products.

Children’s products are broadly defined as items “intended, made or marketed for use by children 12 years of age or under,” including toys, clothing, cosmetics, and jewelry, with specific exemptions (e.g., electronics and bicycles).  The bill applies only to new products.  SB 2660 adopts a familiar definition of PFAS: “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.”

Regulatory Structure

SB 2660 would require that MassDEP create two primary public lists of chemicals:

  1. Chemicals of concern in children’s products
  2. High priority chemicals

The chemicals of concern list would include a broad set of chemicals that may pose hazards in children’s products. Listing would trigger manufacturer reporting.

The high priority chemicals list would be a narrower subset of chemicals of concern, elevated based on evidence of exposure or other regulatory triggers.  Placement on this list would initiate stronger obligations, including substitution and, eventually, sale prohibitions.

Chemicals of Concern List & Requirements

A chemical may be placed on the chemicals of concern list if it is identified as:

  • A carcinogen or mutagen
  • Persistent or bio-accumulative and toxic (PBT)
  • An endocrine disruptor
  • A reproductive or developmental toxicant
  • A neurotoxicant
  • A respiratory or skin sensitizer
  • Any other chemical of equivalent concern

Within 180 days of listing, and biennially thereafter, manufacturers of children’s products containing a chemical of concern above de minimis levels would be required to notify MassDEP.  Notifications would be made available to the public, and would be required to include:

  • Chemical name
  • Product description
  • Brand, model, and UPC (if applicable)
  • Chemical function in the product
  • Amount of the chemical (ranges permitted)
  • Company and contact information
High Priority Chemicals List & Requirements

MassDEP would be allowed to elevate a chemical of concern to the high priority list if:

  • The chemical or its metabolites are found in humans through biomonitoring
  • The chemical is detected in household dust, indoor air, drinking water, or other home environments
  • The chemical is shown to release from a product, leading to likely exposure to children
  • The chemical or products containing it are restricted in another state

Manufacturers of children’s products containing a high priority chemical would be required to notify downstream sellers within 180 days of listing.

Within three years of listing, high priority chemicals would be required to be removed or substituted in children’s products that are (1) mouthable, (2) personal care products or cosmetics, or (3) intended for children under three.

Within five years, high priority chemicals would be prohibited in all children’s products unless preempted by federal law or if MassDEP determines that a ban would pose an unreasonable risk to public health, safety, or welfare.

Chemical Substitutions

SB 2660 also authorizes MassDEP to publish a safer alternatives list.  Manufacturers would be freely allowed substitute high priority chemicals with listed safer alternatives.

If a manufacturer chooses a substitute not on the safer alternatives list, MassDEP approval would be required.  Manufacturers would be required to explain how the product is less hazardous, and MassDEP may require submission of a hazard assessment.

Manufacturers may not replace a high priority chemical with a chemical of concern.

Exceptions and Extensions

SB 2660 includes several provisions to ease compliance:

  • MassDEP may grant temporary or permanent waivers from substitution requirements if exposure is not reasonably anticipated.
  • Manufacturers with 25 or fewer employees may apply for a two-year extension to the deadlines resulting from high priority listing.
  • MassDEP may not impose a lower allowable level than a federal consumer product safety standard unless it completes a rulemaking.
  • Additional exemptions may be established by regulation.
Enforcement and Other Provisions

MassDEP would have authority to adopt rules, test children’s products, and impose civil penalties of $5,000 per violation (or up to $10,000 for repeat violations).

Every three years, MassDEP would be required to publish a report on toxic chemicals in children’s products, including reporting outcomes and policy recommendations.

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Verdant Law closely monitors state-level chemical regulatory bills like SB 2660, including the rapidly expanding wave of PFAS-focused legislation.  Our team is ready to help your company assess potential compliance obligations, stay ahead of emerging requirements, and prepare for potential impacts across product lines and supply chains.