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.

Court Rejects EPA Bid to Dismiss TSCA Confidentiality Suit

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A federal judge in the Middle District of Georgia has denied EPA’s motion to dismiss a lawsuit brought by Burgess Pigment Company, which is seeking to stop the agency from publicly disclosing the identity of one of its chemical substances.  The dispute stems from Burgess’s failure to timely file a required notice under EPA’s “Active/Inactive Rule”—a mistake the company acknowledges, but which it argues does not justify the loss of confidential treatment it had maintained for two decades.

The July 31, 2026, order, which the court described as an easy call at this stage, may be a case of first impression on how confidential business information (CBI) claims are handled under the Toxic Substances Control Act (TSCA).  The question has implications beyond this single dispute, particularly as EPA works through the first wave of CBI expirations and renewals under the amended statute.

How We Got Here

The dispute traces back to 2016, when Congress passed the Lautenberg amendments to TSCA.  Among other changes, the amendments tightened the requirements for companies seeking to keep specific chemical identities confidential and directed EPA to determine which chemicals on the TSCA Inventory—EPA’s master list of chemicals in U.S. commerce—were active in commerce.

EPA implemented that requirement through its 2017 “Active/Inactive Rule,” which required manufacturers and processors to file a Notice of Activity Form A (NAA) for each active chemical.  Companies that wanted to keep a chemical identity confidential had to assert that claim in the NAA.  If no timely NAA was filed, EPA’s position is that it becomes statutorily obligated to disclose the substance’s identity.

Burgess missed the NAA for two chemical substances, which it admits was an error.  Burgess, a Georgia-based kaolin processor, has claimed confidential treatment for its chemical identities since at least 2000, and it argues that disclosure now would give competitors access to information they have not previously had, threatening its very existence.

EPA’s Basis for Denial

In April 2020, EPA informed Burgess that both chemical identities were no longer entitled to confidential treatment, triggering a 30-day window under TSCA for Burgess to seek judicial review.  EPA’s stated basis was not the missed NAA deadline—according to Burgess, EPA instead claimed that another company had waived protection for the substances’ identities.  Burgess disputed that characterization and pushed back through counsel.

In 2022, EPA reversed itself as to one chemical, agreeing to preserve its CBI status.  As to the second—the one now at issue in this case—EPA maintained that it was ineligible for CBI treatment but changed its rationale, instead relying on Burgess’s failure to file a timely NAA.

Burgess has continued to claim confidential treatment for that remaining substance in subsequent TSCA submissions.  Each time, EPA has responded by informing the company that it is not entitled to confidentiality, that EPA plans to disclose it, and that Burgess has 30 days to seek judicial review.  Yet despite years of these notices, EPA has never actually published the chemical’s identity on the public Inventory.

The Lawsuit

Following receipt of the latest denial letter in April 2025, Burgess filed suit in July 2025 under the Administrative Procedure Act (APA), alleging that EPA’s determination was arbitrary and capricious.  In its complaint, Burgess argued that the specific chemical identity is deserving of confidential treatment under TSCA, and that EPA’s approach “unreasonably elevate[s] form over function” by focusing solely on “an inadvertent mistake.”

EPA moved to dismiss in November 2025, arguing that the suit was untimely.  In EPA’s view, its latest letter simply reiterated the original 2020 determination, meaning the real target of Burgess’s challenge was a decision from years earlier—long outside TSCA’s 30-day review window.

The Court’s Ruling

The court was not persuaded, calling dismissal an easy call on the current record.  Much of the order walks through the case’s lengthy factual history, with the judge weaving in several notable observations along the way.  For example, the court appeared to emphasize that EPA has never actually disclosed the contested chemical identity despite years of warning that it would, and that EPA appears “mum on any assessment regarding the merits of Burgess’s potential assertion that the identity of its chemical substance is a trade secret” under the Freedom of Information Act.

The court’s most significant comment addressed Burgess’s argument that EPA itself recognizes the risk of irreparable harm when CBI is lost due to an inadvertent filing mistake.  If that’s true, the court stated, “it very well might be that the EPA’s refusal to withdraw its denial of the CBI claim . . . calls for judicial intervention via the APA.”

The court’s actual merits analysis is comparatively short.  Without appearing to take a definitive position on whether the 2020 or 2025 determination is really being challenged, the court pointed to statements on EPA’s website, cited by Burgess, that prior determinations are only one factor in a CBI review and that each claim is evaluated in the context of the submission in which it is received.  Because the sole reason EPA gave for its 2025 determination was that the chemical identity had already been denied, the court held that dismissal was not warranted on “such a limited record.”

“Until the Court can take a ‘hard look’ at the administrative record to determine whether the EPA has acted in an arbitrary or capricious manner, in an abuse of discretion, or otherwise not in accordance with law, the EPA’s efforts to dismiss Burgess’s APA fail at this early stage,” the order states.  In the order’s closing paragraph, the court cites Burgess’s allegation that nothing in TSCA authorizes EPA to disclose a confidential chemical identity because of a reporting entity’s mistake and notes that EPA’s “strict adherence to and unwillingness to budge on an overly technical rule may cement irreparable and irrevocable devastation to a small family-owned business.”

The case is Burgess Pigment Co. v. U.S. Environmental Protection Agency, No. 5:25-cv-309 (M.D. Ga.), complaint filed July 18, 2025.  EPA has agreed to maintain the confidentiality of the chemical identity for the duration of the litigation.

Microplastics Regulation: EPA Declines to Act, California Moves Forward

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EPA and California took opposite approaches to microplastics regulation within weeks of each other.  On July 1, 2026, EPA proposed to omit microplastics from the Sixth Unregulated Contaminant Monitoring Rule (UCMR 6).  Two weeks earlier on June 18, California’s Department of Toxic Substances Control (DTSC) finalized a regulation adding microplastics to the state’s Safer Consumer Products (SCP) Candidate Chemicals List.

What EPA Proposed

In the proposed UCMR 6, EPA proposed not to include microplastics despite a petition from the governors of seven states—New Jersey, Delaware, Illinois, Maryland, Michigan, Wisconsin, and Connecticut.  That petition matters because the Safe Drinking Water Act section 1445(a)(2)(B)(ii) directs that the administrator “shall include” a contaminant recommended by seven or more governors, unless listing it would prevent listing other contaminants of higher public health concern.

EPA’s basis for declining is analytical feasibility.  The agency states there is no validated EPA or consensus drinking water method with the necessary accuracy and precision to measure microplastics for UCMR 6, and that developing one before the statutory deadline of December 27, 2026, is not feasible.  EPA points out that the governors’ petition itself acknowledges the absence of such a method.  Because monitoring is the entire purpose of the UCMR, EPA argues, requiring systems to test for something no approved method can quantify would yield no usable data while displacing contaminants that can be measured.  Instead, EPA has placed microplastics on the draft Contaminant Candidate List 6 as a first step, and says it will keep evaluating existing consensus practices toward a future method.

It is worth watching whether EPA’s feasibility rationale squarely fits the statutory exception, which is written in terms of “higher public health concern” rather than measurability.  This is a proposed rule open for comment through August 31, 2026, so the final reasoning—and outcome—could change.

What California Did

DTSC’s action runs the other way.  The Office of Administrative Law approved the regulation on June 18, 2026, with an effective date of October 1, 2026; it amends Title 22 to add microplastics—defined as plastics under 5 millimeters in their longest dimension, whether intentionally manufactured or generated by the fragmentation of larger plastics—to the Candidate Chemicals List.  As discussed in a previous post, listing does not itself regulate anything; it is a predicate that lets DTSC evaluate products that contain or generate microplastics and potentially designate them priority products through a later rulemaking.  Listing requires only a hazard trait and consideration of adverse impacts, exposures, and information availability, not a validated quantification method.  As part of its research on microplastics, DTSC published a background document in November 2025 identifying products that could be designated as priority products.

According to DTSC’s Final Statement of Reasons, the agency declined to explicitly define “plastics” in the regulation “because ‘plastics’ has an ordinary English meaning.”  Manufacturers should be aware that DTSC considers biobased and biodegradable polymeric substances within its jurisdiction; DTSC states that

All microplastics, including biodegradable ones, exhibit at least one hazard trait under the Safer Consumer Products Regulations, namely the particle size and fiber dimension hazard trait. Therefore, it is appropriate for DTSC to designate the entire class of microplastics as a Candidate Chemical.

In response to comments that microplastics are more than one chemical and therefore cannot be added to the Candidate Chemicals List through a single rulemaking for a categorical definition, the agency asserted that “there is nothing in the statutes or regulatory history that even implies categorical identities are unauthorized,” noting that list already contains categorical listings, such as PFAS.

The statement of reasons adds that any subsequent priority products proposal for microplastics “will involve an evaluation of potential exposures and significant or widespread adverse impacts associated with those specific products, as well as a formal rulemaking process with opportunity for public input.”  A challenge to the rule is expected.

Coalition Argues TSCA Bars EPA From Weighing Data-Center Benefits in a New-Chemical Review

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A coalition of seventeen environmental organizations, led by Earthjustice, has asked EPA to deny a premanufacture notice (PMN) under the Toxic Substances Control Act (TSCA) for a fluorinated immersion-cooling fluid intended to cool data-center equipment.  The comments press three lines of attack: that the substance poses an unreasonable risk EPA must act on, that the substance’s asserted benefits for data centers are legally irrelevant to that judgment, and that the applicant redacted health and safety information it was required to disclose.

The comments, filed July 15, 2026, respond to EPA’s notice of receipt of the PMN.  The substance is 3-Hexene, 1,1,1,2,2,5,5,6,6,6-decafluoro-, (3E) (CASRN 1256353-26-0), also known as Opteon 2P50.  The PMN applicant’s identity was claimed as confidential business information (CBI).

The Risk the Comments Describe

The coalition’s core argument is that the fluid presents an unreasonable risk that TSCA section 5 obligates EPA to prevent.  It characterizes the substance as a PFAS and urges EPA to find unreasonable risk on that basis alone, citing concerns including persistence, mobility, bioaccumulation potential, and toxicity.  The substance’s status as a PFAS is contested: when chemical supplier Chemours launched the fluid in 2023, it stated that it does not consider the compound a PFAS, describing it as a hydrofluoroolefin (HFO) that degrades quickly in the atmosphere.  The coalition, on the other hand, characterizes HFOs as PFAS and argues that HFOs break down in the atmosphere into shorter-chain PFAS—principally perfluoropropanoic acid (PFPrA) and trifluoroacetic acid (TFA)—that are persistent, highly mobile in water, and difficult to remediate.  They also cite a recent European Chemicals Agency risk assessment committee’s June 2026 opinion—adopted by consensus, now before the European Commission—proposing that TFA be classified as toxic to reproduction.

The comments also argue that the limited information available on the substance raises additional concerns about its risks.  Available toxicity data, they say, come largely from rat studies that understate PFAS risk to humans, and a workplace exposure limit derived by a group the comments describe as industry-linked relied on assumptions it did not disclose.  They add that the fluid is acutely toxic to aquatic life and not readily biodegradable, and that a hyperscale data center could hold tens of thousands of liters of dielectric fluid, with routine evaporative losses and disposal creating recurring releases near workers, fenceline communities, and waters around data centers and disposal sites.

How EPA Must Conduct the Review

A second line of argument concerns EPA’s review process.  TSCA section 5 directs EPA to decide whether a new chemical presents an unreasonable risk “without consideration of costs or other nonrisk factors.” EPA announced in September 2025 that it would prioritize review of new chemicals intended for data-center projects, inviting manufacturers to seek that treatment under Executive Order 14318.  The applicant filed a request for priority review premised on an urgent national need for AI infrastructure, which the coalition contends is irrelevant to the risk determination.  Priority review, they argue, affects when EPA takes up a submission, not the standard it must apply.

Two related arguments target how EPA models exposure.  The comments say EPA cannot assume workers will wear protective equipment, because under the occupational hierarchy of controls such equipment is a last line of defense and, in any event, accounting for its use would violate TSCA by conflating risk evaluation with risk management.  They also argue that EPA must weigh aggregate exposures from many facilities and other reasonably foreseen uses in its analysis.  As an example, the comments claim that the substance is marketed for other cooling applications, including use in electric-vehicle batteries.

The Confidentiality Dispute

The comments separately challenge the applicant’s CBI redactions.  They contend that TSCA generally bars confidentiality claims over health and safety information, yet the filing withheld entire toxicity-profile slides, the toxicological section of the safety data sheet, the applicant’s occupational exposure assessment, and its list of prior substantial risk notices under TSCA Section 8(e).  Other redactions concern information available on Chemours’ website, the coalition argues.

These arguments coincide with litigation brought by Earthjustice-represented environmental groups, which contends that EPA systemically fails to disclose information in PMNs claimed as CBI when the covered information does not facially qualify as confidential.

The comment period for the notice of receipt of the PMN closed July 15, 2026.

Bipartisan Bill Would Give Safer Choice Program Its First Statutory Authorization

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For a voluntary program with roughly 2,000 certified products and unusually broad industry support, Safer Choice has always rested on thin statutory footing.  EPA has run it for more than a decade under general Toxic Substances Control Act (TSCA) authority, without any statute naming the program or directing the agency to operate it.  A bill introduced in the Senate on June 2, 2026, would change that.

What the Bill Does

Senators Chris Coons (D-DE) and Jon Husted (R-OH) introduced S. 4664, the Safer Choice Program Authorization Act of 2026, which would direct the EPA administrator to carry out a voluntary Safer Choice Program encompassing both the Safer Choice and Design for the Environment (DfE) Standards. The bill has been read twice and referred to the Committee on Environment and Public Works.

The legislation would codify much of what EPA already does administratively.  It directs the Administrator to certify products against those Standards, criteria the agency updated in 2024; to maintain the Safer Chemical Ingredients List; and to authorize use of the Safer Choice and DfE labels, which the bill treats as agency marks that may not be used in a false or unauthorized manner.  It would formalize the role of qualified third-party profilers—the outside reviewers who evaluate ingredients and formulations—subject to independence and conflict-of-interest requirements, while reserving final certification decisions to the administrator.  The bill would also authorize the administrator to add product categories—a direction EPA explored through a 2023 request for comment.  It directs coordination with the Food and Drug Administration and the Consumer Product Safety Commission and authorizes $6 million per year for fiscal years 2028 through 2034.

Why It Matters

Because Congress never authorized Safer Choice, the program has been exposed to elimination through budget and reorganization decisions rather than legislation.  Project 2025’s Mandate for Leadership recommended transitioning the Safer Choice program to the private sector, and in 2025 EPA reportedly moved the program into a larger chemicals division as part of a broader reorganization.  The administration’s recent budget requests have proposed steep reductions across EPA.  Statutory authorization would make the program meaningfully harder to unwind administratively.

Who Is Affected

The interested parties here are mostly proponents.  Cleaning-product manufacturers account for most Safer Choice certifications, and they, along with ingredient suppliers, retailers, and institutional and government purchasers who use the label as a procurement benchmark, have an interest in the program’s continuity.  Trade associations representing these sectors have supported authorization.  In addition, third-party profilers would gain a defined statutory role under the legislation.

California Barred from Enforcing Prop 65 DEA Warning After First Amendment Challenge

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On June 24, 2026, the U.S. District Court for the Eastern District of California entered a final judgment and permanent injunction barring the Attorney General from enforcing Proposition 65’s cancer-warning requirement for diethanolamine (DEA) in cosmetics.  The judgment adopts a stipulation that the Personal Care Products Council (PCPC) and Attorney General Rob Bonta filed the day before, resolving PCPC’s First Amendment challenge to the DEA warning.

First Amendment Arguments

As discussed in a previous post, DEA was automatically added to the Prop 65 list after the International Agency for Research on Cancer (IARC) concluded that the substance is “possibly carcinogenic to humans.”  However, in its complaint, PCPC argued that IARC did not identify any studies establishing a link between DEA and cancer in humans, relying instead on a study of “questionable relevance” in a highly susceptible strain of mice.  As a result, PCPC contended, applying the DEA Prop 65 cancer warning “in cosmetic and personal products is false, misleading, and factually controversial,” in violation of the First Amendment.

What the Parties Agreed

The Attorney General did not concede the constitutional question.  He continues to dispute that the DEA warning violates the First Amendment, but agreed to resolve the case in light of, as the stipulation puts it, “the current state of the relevant science” and three recent decisions rejecting compelled Prop 65 cancer warnings: a Ninth Circuit ruling on glyphosate, and two district court rulings on acrylamide and titanium dioxide. Under the stipulation, the Attorney General reserves the right to move to dissolve the injunction under Federal Rule of Civil Procedure 60(b) if the facts or law change.

What the Order Provides

The order declares that, based on the current state of the science, the DEA cancer warning cannot be constitutionally enforced.  It permanently enjoins the Attorney General, his officers, employees, and agents, and “all those acting in privity or concert with” them from filing or prosecuting new lawsuits to enforce the DEA warning requirement for cosmetic and personal care products.  For companies that make or sell DEA-containing cosmetics—shampoos, liquid soaps, and body washes—the order removes the Attorney General as a source of new DEA warning suits.

Because the judgment was entered on the parties’ stipulation rather than after a merits ruling, no court weighed the DEA science or held the warning unconstitutional in adversarial litigation.  Its declaratory language is tied to the current state of the science, and the Rule 60(b) reservation leaves room to revisit the injunction if that science or the law changes.

The case is The Personal Care Products Council v. Bonta, No. 2:26-cv-00682 (E.D. Cal.), complaint filed March 2, 2026.

FIFRA Preempts Label-Based Failure-to-Warn Claims, Supreme Court Rules

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On June 25, 2026, the Supreme Court held, 7-2, that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a state-law failure-to-warn claim alleging that Monsanto failed to warn users that the weedkiller Roundup causes cancer.  The decision in Monsanto Co. v. Durnell concludes that EPA’s approval of a pesticide label without a cancer warning constitutes a federal labeling “requirement” that state tort law cannot override.

The ruling resolves a circuit split. The Third Circuit previously found preemption on these facts, while the Ninth and Eleventh Circuits and several state appellate courts had not.

What the Court Decided

Writing for the majority, Justice Kavanaugh identified two interlocking features of FIFRA’s registration regime that together produce the preemptive effect.  First, before registering any pesticide, EPA must determine that the proposed label contains all warnings “necessary and . . . adequate to protect health and the environment” and is not false or misleading.  That determination reflects the agency’s considered judgment about what a label must—and need not—say.  Second, EPA’s implementing regulations require manufacturers to use the EPA-approved label, subject to narrow exceptions not at issue in this case.  Changing the label without EPA approval, including by unilaterally adding a cancer warning, may expose the manufacturer to civil and criminal penalties under federal law.  Together, the majority reasoned, those features constitute a federal labeling “requirement” under FIFRA’s preemption clause that preempts state tort law claims imposing labeling requirements “in addition to or different from” those required under FIFRA.

The majority found support for that reasoning in Riegel v. Medtronic, Inc., which held that FDA premarket approval of medical devices preempts conflicting state-law device claims, emphasizing the similarities between that preemption clause and FIFRA’s.  It also distinguished Bates v. Dow Agrosciences LLC, which allowed state failure-to-warn claims equivalent to FIFRA’s misbranding standard, on the ground that Bates involved efficacy claims—statements EPA does not review at registration.  Safety determinations, which EPA does review, carry preemptive force that efficacy claims do not, the majority ruled.

Writing for the dissent, Justice Jackson argued FIFRA’s own misbranding prohibition is the relevant federal requirement, and a state claim that simply parallels that prohibition should not be preempted under Bates.  The majority and dissent also disagree over whether EPA’s precautionary-statement regulations reach chronic risks like cancer, as opposed to only acute hazards.  The majority concludes they do, while the dissent maintains the regulatory text addresses acute hazards only.  Because cancer is a chronic condition, the dissent argues pesticide manufacturers can add a cancer warning without EPA approval.

Justice Thomas joined the majority in full but wrote separately to question whether FIFRA’s registration scheme exceeds Congress’s Commerce Clause authority, whether FIFRA unlawfully delegates legislative power to EPA, and whether agency action can carry preemptive force under the Supremacy Clause at all.  No other Justice joined that view.

Who’s Affected

The decision most directly benefits pesticide and agrochemical manufacturers defending failure-to-warn claims premised on an EPA-approved label.  The Court’s reasoning, however, leans on a comparison to other federal statutes with similarly worded preemption clauses, which suggests the analysis may be cited in disputes involving other federally regulated, labeled products.  The opinion does not address other theories—such as design defect, manufacturing defect, or advertising-based claims—that were not before the Court in this case.

What to Watch

The Judicial Panel on Multidistrict Litigation’s pending-dockets report lists roughly 3,900 active cases in the Roundup MDL as of July 1, 2026, a population of claims against which Durnell‘s reasoning will likely be tested in dismissal motions.  EPA’s glyphosate registration posture also remains unsettled in part, since the Ninth Circuit vacated the agency’s most recent 2020 interim registration review decision in 2022.

In addition, federal lawmakers have introduced legislation to override the Court’s interpretation.  The People Over Poison Act, H.R.9528, would add language to FIFRA clarifying that the law’s preemption clause “shall not be construed to prohibit or otherwise limit a claim related to the labeling or packaging of pesticides or devices under the tort law of any State.”  The bill was introduced on June 29, 2026, by Reps. Chellie Pingree (D-ME) and Thomas Massie (R-KY) and has been referred to the House Committee on Agriculture.

The case is Monsanto Co. v. Durnell, No. 24-1068 (U.S.), petition for writ of certiorari granted January 16, 2026.  A previous post on the case, written after the Court granted certiorari, can be found here.

Federal Legislation Would Deem 15 Chemicals Unsafe in Food Packaging

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On June 9, 2026, lawmakers introduced the No Toxic Chemicals in Food Packaging Act of 2026, which would ban 15 chemicals or chemical classes—including PFAS, ortho-phthalates, and bisphenol A—from food-contact use.  H.R.9231 was introduced by Rep. Jan Schakowsky (D-IL) and Rep. Rosa DeLauro (D-CT) and has been referred to the House Committee on Energy and Commerce.  The Senate companion, S.4724, was introduced by Sen. Richard Blumenthal (D-CT) and has been referred to the Senate Committee on Health, Education, Labor, and Pensions.

Similar legislation was introduced in 2023, but that bill covered fewer substances and did not advance out of committee.

What the Bill Does

The bill amends the Federal Food, Drug, and Cosmetic Act (FFDCA) § 409 (21 U.S.C. § 348) by adding a new subsection (l) that deems 15 chemicals or chemical classes unsafe for use as food contact substances.  That designation is cross-referenced against FFDCA § 402(a)(2)(C), the adulteration provision, meaning food packaged or processed using these substances would be treated as adulterated under existing law.

The bill covers the following substances:

  • Any chemical belonging to the class of ortho-phthalates
  • Any chemical belonging to the class of PFAS
  • Bisphenol A, B, S, F, or AF or related compounds
  • Acrolein
  • Acrylamide
  • BHA (tert-Butyl-4-hydroxyanisole)
  • Chlorinated paraffins
  • 1,4-Dioxane
  • Asbestos
  • Benzene
  • Chloroform
  • Methylene chloride
  • Ethylene oxide
  • Formaldehyde
  • Styrene polymers

Three drafting choices are worth flagging.  First, a new subsection (l)(2) directs FDA to weigh potential adverse effects on “vulnerable populations”—defined broadly to include infants, pregnant women, workers, and residents of disproportionately exposed communities—when evaluating substitute substances proposed as alternatives to the banned fifteen.

Second, the bill includes an express savings clause preserving state and local authority to regulate food additives, including authority more stringent than the federal floor.  That non-preemption choice is notable given the growing number of states that have restricted or are considering restricting certain additives.

Third, the legislation expansively defines PFAS as any substance containing at least one fully fluorinated methyl or methylene carbon atom, which closely resembles the most recent Organisation for Economic Co-operation and Development (OECD) definition.

The new subsection would take effect two years after enactment, per the bill’s delayed-applicability clause.

Why It Matters Now

The bill arrives while FDA is already facing litigation pressure on two of the chemical classes it targets.  A coalition of advocacy groups is challenging FDA’s 2022 denial—reaffirmed on reconsideration in October 2024—of a petition to revoke authorizations for 28 ortho-phthalates, in litigation now pending before the D.C. Circuit.  Separately, a citizen petition seeking PFAS tolerances in food is the subject of an Administrative Procedure Act suit in the District of Arizona, where the court has continued proceedings pending FDA’s response.  As of this writing, neither matter has produced a ruling on the merits, and both postures could change before this bill reaches markup.

FDA has also launched a reassessment of one of the affected substances, BHA, on its own initiative.  The review, announced in February, will consider whether BHA is safe under its current conditions of use in food and as a food contact substance.  In addition, over a dozen states have already enacted prohibitions on the use of PFAS in food packaging.

Who’s Affected

Food and beverage manufacturers, packaging converters (particularly PFAS-treated paper and fiber products and phthalate-plasticized flexible packaging), and upstream chemical suppliers face the most direct reformulation exposure.  Grocery, retail, and food service companies would also inherit supply-chain risk from upstream suppliers.

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.

Texas AG Launches Glyphosate Investigation into Major Food Companies

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Texas Attorney General Ken Paxton has initiated an investigation into glyphosate residue in foods, especially foods containing oats, his office announced June 2, 2026.

The investigation will examine whether major food companies are complying with Texas law and whether consumers have been misled by health claims on common food products.  The office has already issued civil investigative demands to pesticide and food manufacturers including Bayer and PepsiCo, the press release states.

According to the release, the percentage of Americans with detectable levels of the herbicide in their bodies has risen sharply in recent decades—from 12% in 1993 to over 70% today.  The office attributes this largely to the widespread use of glyphosate as a desiccant, or drying agent, applied to crops shortly before harvest, which it claims accounts for over 90% of glyphosate found in food.

Oats are a particular focus.  While the EPA prohibits using glyphosate as a desiccant on oats grown domestically, the office alleges that “major food companies source their oats from foreign countries where the practice is allowed,” leading to elevated exposures in children through foods such as cereals, breakfast bars, and cookies.

“In fact, studies show that certain food products marketed to children are some of the most glyphosate-contaminated food products in the United States,” the release states.  “Other products are marketed as ‘healthy’ when manufacturers know their products are contaminated with dangerously high levels of glyphosate.”

The glyphosate probe comes less than two months after Paxton’s office announced a similar investigation into activewear company Lululemon over alleged consumer deception related to PFAS in its products.

Glyphosate is one of the most widely used herbicides worldwide and the active ingredient in Roundup.  In 2015, the International Agency for Research on Cancer classified glyphosate as a probable human carcinogen, a designation that EPA has not adopted.  Under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and Federal Food, Drug, and Cosmetic Act (FFDCA), EPA sets pesticide food tolerances at levels at least 100 times below the dose that produced no adverse effects during animal testing.