Senate Republicans have introduced draft Toxic Substances Control Act (TSCA) reform legislation, which will be examined at a Senate Environment and Public Works (EPW) Committee hearing on March 4, 2026.
The “Toxic Substances Control Act Fee Reauthorization and Improvement Act of 2026” takes a narrower approach than its House counterpart released in January, focusing primarily on the regulation of new chemicals under TSCA section 5. As its title suggests, the discussion draft would also reauthorize the TSCA fee program, which is set to expire at the end of fiscal year 2026, for another 10 years.
“We need to improve our current systems so we can bring better, safer and more innovative chemicals to market — with the predictability and resources to get it right,” EPW Chair Shelley Moore Capito (R-WV) said in a statement to E&E News. “This discussion draft is a step in the right direction, and I look forward to working with my colleagues on this during next week’s hearing.”
Tiered Review for New Chemicals
A central feature of the draft is the creation of a four-tiered framework for new chemical notices under section 5:
- Tier 1: New chemicals and new uses that satisfy Safer Choice and Design for the Environment criteria.
- Tier 2: New chemicals and new uses that fall into a chemical category “for which the Administrator has developed established scientific methodology for review.”
- Tier 3: New chemicals and new uses intended to serve as an alternative to a riskier existing chemical where modeling or other information demonstrates potential risk reduction.
- Tier 4: All other new chemicals and new uses.
Although each tier would be assigned its own EPA review timeframe, the draft does not specify the number of review days applicable to any category. The tiered structure appears designed to address longstanding industry concerns regarding the growing backlog of new chemical submissions, which frequently extend beyond the current statutory 90-day review period (extendable to 180 days).
Third-Party Assessors
Another proposed change presumably designed to address the new chemical submission backlog is a mechanism by which third parties could provide a preliminary review of section 5 submissions.
Accredited third-party assessors would be authorized to review submissions for completeness and determine whether any risk assessment included in the submission was conducted using EPA assumptions, models, and procedures. Submissions that receive a third-party risk assessment review would be eligible for expedited review periods, which are unspecified but vary by tier.
Notably, if EPA fails to make a determination within the expedited review period for a dual-certified submission—one that received both a completeness and risk assessment review—the applicant would be allowed to commence manufacture consistent with the conditions described in the submission. EPA would retain authority to order cessation of manufacture upon completing its review.
Stewardship Pathway Authorization
Separate from the tiered review framework, the draft proposes a “stewardship pathway authorization” as an alternative route to the manufacture and distribution of a new chemical.
Applicants would submit a detailed stewardship implementation plan outlining intended conditions of use, engineering controls, disposal practices, PPE requirements, and downstream communication measures. Manufacturers of chemicals approved under this pathway would be required to obtain contractual commitments from immediate recipients of the substance that they will comply with the approved stewardship implementation plan. Approved chemicals would not be placed on the TSCA Inventory.
The draft does not specify how many days EPA would have to review stewardship pathway applications. As with dual-certified third-party submissions, if EPA fails to act before the deadline and no extension has been granted, the requirements of the section would be deemed fulfilled for the conditions of use described in the submission.
Section 5 Exemptions
In addition to restructuring the review process, the draft proposes codifying versions of the low volume exemption (LVE) and low releases and low exposures (LoREX) exemption. EPA has long allowed these exemptions by rule, which ease section 5 requirements for eligible chemicals. The draft would make certain PFAS ineligible for either exemption, and only allow other PFAS and persistent, bioaccumulative, and toxic chemicals (PBTs) to qualify if certain conditions were met.
Again, the draft does not specify the EPA review timeframe for these exemption submissions, which would differ for PFAS and PBTs. Exemption timeframes when expedited via third-party assessment are also unspecified.
The draft would also establish a brand-new Section 5 exemption for de minimis quantities, allowing the manufacture or processing of any chemical in quantities of less than 500 kilograms per year if the manufacturer or processor notifies EPA within 30 days of commencing manufacture. A variety of substances would be ineligible, including substances with at least one fully fluorinated atom, nanomaterials, and mercury, lead, and cadmium compounds, among others.
Other Section 5 Revisions
Another subtle but important change is the replacement of the term “may present” unreasonable risk with “is more likely than not to present” unreasonable risk in section 5. Currently, if EPA determines that a new chemical or new use “may present” unreasonable risk in the absence of sufficient information to permit a reasoned evaluation, EPA must issue an order to address that risk. Raising that bar to “more likely than not” would require greater certainty before issuance of an order, known as a 5(e) order.
Similarly, the draft proposes to change the standard for granting section 5 exemptions from “will not present” unreasonable risk to “is not likely to present” unreasonable risk.
The draft also addresses incomplete submissions. Under the proposal, EPA would have a limited time to determine whether a submission is complete and issue a deficiency notice; its ability to do so after that window expires would be restricted.
Environmental groups and EPA have often pointed to incomplete section 5 submissions and associated rework as a significant contributor to new chemical delays.
Other provisions in the draft require EPA to maintain a program similar or identical to the Sustainable Futures Program and consider information voluntarily provided in submissions, including whether the chemical may reduce greenhouse gas emissions among other criteria.
Key Definitions
Cutting across each of these reforms are proposed revisions to two foundational TSCA terms that would have significant implications for both new and existing chemical regulation.
First, the draft would narrow the scope of “conditions of use,” which are the reasonably foreseeable chemical uses evaluated by EPA to determine whether restrictions on a chemical are necessary. While preserving the existing definition, the draft would add the following qualifications to what circumstances are considered conditions of use by:
- Excluding “merely hypothetical circumstances.”
- Requiring that EPA “have a cognizable basis to foresee [a] condition of use”
- Excluding uses that violate other federal laws as “not within the meaning of what is reasonably foreseen.”
- If a submitter provides information demonstrating that “broadly applied and effective exposure control measures are routinely used,” it would create a “rebuttable presumption that the lack of such measures is not reasonably foreseen.”
Second, the draft proposes to add bounds to “unreasonable risk,” a crucial, currently undefined term that serves as the basis for regulation under TSCA. The draft would exclude “risks that may arise from common, well-understood hazards, such as irritation, corrosion, flammability, unreactive dust, and other physical effects” from the meaning of unreasonable risk. It would also clarify that the phrase “includes consideration of both the hazard of a substance and the quantity, frequency, and duration of the exposure to the environment.”
Senate Republicans Release Draft TSCA Reform Legislation Ahead of EPW Hearing
/in EPA, News & Events, TSCA ReformSenate Republicans have introduced draft Toxic Substances Control Act (TSCA) reform legislation, which will be examined at a Senate Environment and Public Works (EPW) Committee hearing on March 4, 2026.
The “Toxic Substances Control Act Fee Reauthorization and Improvement Act of 2026” takes a narrower approach than its House counterpart released in January, focusing primarily on the regulation of new chemicals under TSCA section 5. As its title suggests, the discussion draft would also reauthorize the TSCA fee program, which is set to expire at the end of fiscal year 2026, for another 10 years.
“We need to improve our current systems so we can bring better, safer and more innovative chemicals to market — with the predictability and resources to get it right,” EPW Chair Shelley Moore Capito (R-WV) said in a statement to E&E News. “This discussion draft is a step in the right direction, and I look forward to working with my colleagues on this during next week’s hearing.”
Tiered Review for New Chemicals
A central feature of the draft is the creation of a four-tiered framework for new chemical notices under section 5:
Although each tier would be assigned its own EPA review timeframe, the draft does not specify the number of review days applicable to any category. The tiered structure appears designed to address longstanding industry concerns regarding the growing backlog of new chemical submissions, which frequently extend beyond the current statutory 90-day review period (extendable to 180 days).
Third-Party Assessors
Another proposed change presumably designed to address the new chemical submission backlog is a mechanism by which third parties could provide a preliminary review of section 5 submissions.
Accredited third-party assessors would be authorized to review submissions for completeness and determine whether any risk assessment included in the submission was conducted using EPA assumptions, models, and procedures. Submissions that receive a third-party risk assessment review would be eligible for expedited review periods, which are unspecified but vary by tier.
Notably, if EPA fails to make a determination within the expedited review period for a dual-certified submission—one that received both a completeness and risk assessment review—the applicant would be allowed to commence manufacture consistent with the conditions described in the submission. EPA would retain authority to order cessation of manufacture upon completing its review.
Stewardship Pathway Authorization
Separate from the tiered review framework, the draft proposes a “stewardship pathway authorization” as an alternative route to the manufacture and distribution of a new chemical.
Applicants would submit a detailed stewardship implementation plan outlining intended conditions of use, engineering controls, disposal practices, PPE requirements, and downstream communication measures. Manufacturers of chemicals approved under this pathway would be required to obtain contractual commitments from immediate recipients of the substance that they will comply with the approved stewardship implementation plan. Approved chemicals would not be placed on the TSCA Inventory.
The draft does not specify how many days EPA would have to review stewardship pathway applications. As with dual-certified third-party submissions, if EPA fails to act before the deadline and no extension has been granted, the requirements of the section would be deemed fulfilled for the conditions of use described in the submission.
Section 5 Exemptions
In addition to restructuring the review process, the draft proposes codifying versions of the low volume exemption (LVE) and low releases and low exposures (LoREX) exemption. EPA has long allowed these exemptions by rule, which ease section 5 requirements for eligible chemicals. The draft would make certain PFAS ineligible for either exemption, and only allow other PFAS and persistent, bioaccumulative, and toxic chemicals (PBTs) to qualify if certain conditions were met.
Again, the draft does not specify the EPA review timeframe for these exemption submissions, which would differ for PFAS and PBTs. Exemption timeframes when expedited via third-party assessment are also unspecified.
The draft would also establish a brand-new Section 5 exemption for de minimis quantities, allowing the manufacture or processing of any chemical in quantities of less than 500 kilograms per year if the manufacturer or processor notifies EPA within 30 days of commencing manufacture. A variety of substances would be ineligible, including substances with at least one fully fluorinated atom, nanomaterials, and mercury, lead, and cadmium compounds, among others.
Other Section 5 Revisions
Another subtle but important change is the replacement of the term “may present” unreasonable risk with “is more likely than not to present” unreasonable risk in section 5. Currently, if EPA determines that a new chemical or new use “may present” unreasonable risk in the absence of sufficient information to permit a reasoned evaluation, EPA must issue an order to address that risk. Raising that bar to “more likely than not” would require greater certainty before issuance of an order, known as a 5(e) order.
Similarly, the draft proposes to change the standard for granting section 5 exemptions from “will not present” unreasonable risk to “is not likely to present” unreasonable risk.
The draft also addresses incomplete submissions. Under the proposal, EPA would have a limited time to determine whether a submission is complete and issue a deficiency notice; its ability to do so after that window expires would be restricted.
Environmental groups and EPA have often pointed to incomplete section 5 submissions and associated rework as a significant contributor to new chemical delays.
Other provisions in the draft require EPA to maintain a program similar or identical to the Sustainable Futures Program and consider information voluntarily provided in submissions, including whether the chemical may reduce greenhouse gas emissions among other criteria.
Key Definitions
Cutting across each of these reforms are proposed revisions to two foundational TSCA terms that would have significant implications for both new and existing chemical regulation.
First, the draft would narrow the scope of “conditions of use,” which are the reasonably foreseeable chemical uses evaluated by EPA to determine whether restrictions on a chemical are necessary. While preserving the existing definition, the draft would add the following qualifications to what circumstances are considered conditions of use by:
Second, the draft proposes to add bounds to “unreasonable risk,” a crucial, currently undefined term that serves as the basis for regulation under TSCA. The draft would exclude “risks that may arise from common, well-understood hazards, such as irritation, corrosion, flammability, unreactive dust, and other physical effects” from the meaning of unreasonable risk. It would also clarify that the phrase “includes consideration of both the hazard of a substance and the quantity, frequency, and duration of the exposure to the environment.”
Rhode Island’s Microplastics Reduction Act Would Prohibit Sales by 2030
/in EU, Microplastics, REACH, State PolicyRhode Island lawmakers have introduced legislation that would ban products containing intentionally added microplastics and require the development of statewide testing and strategy plans.
The Microplastics Reduction Act, SB 2534, would prohibit the sale or distribution of any product containing intentionally added synthetic polymer microparticles starting January 1, 2030. The definitions of key terms used in the legislation, like “synthetic polymer microparticles,” largely mirror those used in the European Union (EU) Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regulations for microplastics adopted in 2023.
Unlike the phased implementation under REACH, however, SB 2534’s prohibition applies to all covered products simultaneously. Only products preempted from regulation by federal law are excluded from the bill, which was introduced February 13, 2026.
SB 2534 would also require the Rhode Island Department of Environmental Management (DEM) to develop two reports:
Definition of Microplastics
SB 2534 defines “synthetic polymer microparticles” as solid polymers that meet both of the following conditions:
Naturally occurring particles are excluded. However, unlike REACH, SB 2534 does not provide exemptions for degradable, soluble, or non-carbon-containing plastic particles.
A synthetic polymer microparticle is considered “intentionally added” if it is added to confer a sought-after characteristic in mixtures in a concentration equal to or greater than 0.01% by weight. SB 2534 defines “product” broadly to include items sold for personal, residential, commercial, or industrial use.
Microplastics regulation is also under consideration in California. Regulators have proposed a simpler definition: plastics less than 5mm in their longest dimension, including materials intentionally manufactured at those dimensions and materials generated by the fragmentation of larger plastics.
California’s Department of Toxic Substances Control (DTSC) will weigh listing microplastics as a “candidate chemical” through April 2026, according to a timeline on its website. DTSC previously solicited comment, through January 2026, on a technical document outlining the rationale for listing microplastics and identifying products that may contain them.
Fourth Circuit to Review West Virginia Dye Ban Injunction
/in FDA, State PolicyThe Fourth Circuit will decide whether a lower court properly paused enforcement of a West Virginia law banning certain FDA-approved synthetic color additives over concerns the statute is unconstitutionally vague.
The case arises from a 2025 West Virginia law designating seven color additives as “poisonous and injurious” and prohibiting their use in school nutrition programs—including six additives currently approved by FDA for use in food, drugs, or cosmetics.
On December 23, 2025, the Southern District of West Virginia issued a preliminary injunction, agreeing with a color additive trade association that identifying FDA-approved additives as “poisonous and injurious” rendered the law’s requirements unclear.
“[T]he inclusion of a list of FDA-approved color additives muddies the water and creates confusion as to what substances now constitute ‘poisonous and injurious,’” the court wrote. Food additive makers “cannot predict what substances may be considered ‘poisonous and injurious’ when such a slim explanation exists for the named color additives,” leaving the door open for arbitrary enforcement, the opinion continues.
The court further emphasized that, because FDA has not determined six of the seven listed additives to be unsafe, “it is imperative that West Virginia define and, thereby, give necessary notice and guidance as to what constitutes ‘poisonous and injurious.’”
The trade association’s additional claims—that the statute constitutes an unconstitutional bill of attainder and violates the Equal Protection Clause—were rejected. West Virginia officials filed a notice of appeal on January 22, 2026.
Although West Virginia has long barred the sale of adulterated food, including food containing ingredients deemed “poisonous or injurious to health,” it had not previously identified specific substances as meeting that undefined statutory standard.
Contested Additives
The seven color additives named by the statute are FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5, and FD&C Yellow No. 6. FDA has revoked authorization for FD&C Red No. 3 in food and ingested drugs, effective January 2027. Only the six additives that remain FDA-approved are at issue in the litigation.
H.B. 2354 also names two preservatives, butylated hydroxyanisole (BHA) and propylparaben. This month, FDA launched a reassessment of BHA’s safety, publishing a request for information on the use and safety of the substance. BHA is currently listed as generally recognized as safe (GRAS).
The appellants, West Virginia officials from the Department of Health and Bureau for Health, must file their opening brief by March 4. The trade association’s response is due April 3.
The case is International Association of Color Manufacturers v. Singh, No. 26-1085 (4th Cir.), appeal filed January 22, 2026. The underlying case, No. 25-cv-588 (S.D. W. Va.), was filed October 10, 2025.
Court Applies FTC Green Guides in Igloo Marketing Lawsuit
/in FTC, Green Marketing, Made in USAA proposed class action challenging recycled content, biodegradability, and “Made in USA” claims on Igloo-brand cooler products can proceed, the Eastern District of New York ruled on February 2, 2026.
According to the court, Igloo makes unqualified recycled content and biodegradability claims on the front labels of various products. These include statements such as “Made From Biodegradable Materials” and “Made With Post Consumer Recycled Plastic Material,” often accompanied by the chasing arrows recycling symbol. Igloo also advertises certain products with unqualified “Made in USA” representations. The plaintiffs, a New York consumer and a Texas consumer, allege that these claims are deceptive and that they would not have purchased the products at the stated price had they known the products lacked these qualities.
The court’s analysis centered on the Federal Trade Commission’s (FTC’s) Green Guides, which provide guidance on environmental marketing claims. Although the guidance does not create independent causes of action, the court emphasized that alleged noncompliance can support deception claims because the Green Guides “illustrate how unqualified representations of a product’s qualities may plausibly deceive and mislead a reasonable consumer.”
With respect to Igloo’s unqualified biodegradability claims, the court observed that the Green Guides caution against such claims for products disposed of in landfills, where conditions do not allow for prompt degradation. Combined with studies cited by the plaintiffs, this guidance made the plaintiffs’ deception theory plausible at the pleading stage.
Similarly, the court found the company’s recycling content claims plausibly deceptive because they did not disclose that the products were not entirely made of recycled content—despite the Green Guides’ instruction that marketers qualify claims for products containing both recycled and non-recycled content.
The court also held that, at this stage, the plaintiffs had standing to challenge representations made about products they did not purchase. It noted, however, that Igloo may renew its standing arguments at class certification.
“Made in USA” and Other Claims
The plaintiffs’ “Made in USA” claims also survived dismissal, despite falling outside the scope of the Green Guides. The court held that the allegations—that only a “minimal amount” of certain materials used by Igloo are produced domestically—were enough at the pleading stage, even without concrete proof that the contested products contain foreign materials.
“Plaintiffs have alleged that the relevant products contain ‘materials’ and ‘full components’ sourced and imported from other countries,” the court wrote. “This is sufficient to allege that the Made in USA Representations were materially misleading”
Two claims did not survive. The court dismissed the plaintiffs’ breach of express warranty claim for failure to provide pre-suit notice, and dismissed the unjust enrichment claim as duplicative of the statutory and common law claims.
Throughout the opinion, the court repeatedly declined to rule or provide commentary on the merits. Quoting caselaw, the court emphasized that “‘[a] federal trial judge, with a background and experience unlike that of most consumers, is hardly in a position to declare’ that reasonable consumers would not be misled.”
The case is Lieber v. Igloo Products Corp., No. 25-cv-488 (E.D.N.Y.), filed January 28, 2025.
Court Enjoins Oregon Packaging EPR Law in NAW Challenge
/in EPR, State PolicyOn February 6, 2026, the Oregon District Court granted a preliminary injunction in a challenge to Oregon’s packaging extended producer responsibility (EPR) scheme while dismissing other claims without prejudice.
The one-paragraph order bases the injunction on the plaintiff’s dormant Commerce Clause and due process claims. Those claims allege that the scheme unduly restricts interstate commerce and delegates unprecedented regulatory authority to a producer responsibility organization (PRO).
“Serious questions go to the merits of Plaintiff’s claims, there is a likelihood of irreparable injury, and the balance of hardships tips sharply in favor of Plaintiff,” the court wrote. “The Court therefore enjoins Defendant Leah Feldon from enforcing the Plastic Pollution and Recycling Modernization Act against Plaintiff National Association of Wholesale Distributors [(NAW)] and its members.”
The court dismissed NAW’s remaining claims, including its equal protection claim, unconstitutional conditions claim, and claims brought under the Oregon Constitution. It also dismissed all claims against four Oregon officials, which the state argued were barred by the Eleventh Amendment.
NAW has until February 20, 2026, to replead the dismissed claims. In a separate docket entry, the court set a five-day court trial to begin July 13, 2026.
The case is National Association of Wholesaler-Distributors v. Feldon, 25-cv-1334 (D. Or.), filed July 30, 2025. A prior post discussing the motion for a preliminary injunction and motion to dismiss is available here.
New Mexico Lawmaker Calls for Review of PFAS Exemptions
/in PFAS, Right-to-Know, State PolicyUpdate – 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.
* * *
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:
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.
NAD Finds Issues with Bashlin “Made in USA” Claims
/in Made in USAA manufacturer of lineworker equipment will modify or discontinue certain “Made in USA” claims following recommendations by the Better Business Bureau (BBB) National Programs’ National Advertising Division (NAD), the industry self-regulatory body announced on January 28, 2026.
The challenge, brought by a competitor against Bashlin Industries, Inc., concerned multiple unqualified “Made in USA” claims appearing on products and webpages.
NAD concluded that a claim on a climber product should be modified because consumers could not determine which components “contain more than a negligible amount of content of undetermined origin.” NAD also found that claims on third-party manufactured bucket knuckle and hat liner products lacked substantiation. Bashlin’s role as a reseller, NAD notes, does not relieve it of responsibility for ensuring the accuracy of origin claims.
Referencing the Federal Trade Commission’s (FTC’s) “all or virtually all” standard, NAD added that an American-made plastic bucket bottom could not be labeled “Made in USA” because consumers could reasonably interpret the claim to apply to the entire bucket.
NAD further recommended that Bashlin stop using an American flag logo and other patriotic imagery unless those elements are “far removed” from product-specific information. It also determined that “Made in USA” claims in Bashline safety videos constitute national advertising due to their broad distribution and promotional purpose, despite on-screen disclosures.
In its advertiser statement, Bashlin disagreed with NAD’s conclusions but stated that it “supports the self-regulatory process and will seek to comply with its recommendations.”
More on BBB National Programs can be found here.
Court Certifies PFAS-Based Class Action Over Smucker Pet Food
/in PFASThe J.M. Smucker Co. faces a certified class action alleging its pet food labels misleadingly tout products as “100% healthy” and “nutritious” despite containing titanium dioxide and packaging that may contain PFAS.
In an opinion focused primarily on the alleged presence of PFAS in the packaging, the Northern District of California held that Smucker’s failure to disclose PFAS could conflict with its health-based marketing claims, satisfying the plaintiffs’ evidentiary burden for class certification.
“Smucker does not need to explicitly label its products as ‘PFAS Free’ for there to arise an assumption that the products are free of such materials; this is especially true when the rest of the packaging asserts benefits to the user’s health and nutrition,” the opinion, filed January 22, 2026, states.
The court additionally concluded that the plaintiffs plausibly alleged the presence of PFAS poses an unreasonable safety hazard that must be disclosed. While there is uncertainty about whether PFAS could migrate from packaging to the pet food itself, Smucker’s arguments that PFAS would not migrate “go more towards the weight of the evidence, a question that gets to the merits of the case and is inapplicable at this stage,” the court held.
It is immaterial that different pets might be affected by PFAS differently, since the plaintiffs allege economic harms rather than health harms, the court added.
The court was also unpersuaded by Smucker’s argument that the named plaintiffs did not rely on the alleged omission. While the plaintiffs initially testified that they had not reviewed the labels, the court credited supplemental declarations stating that they had done so.
The class certification encompasses all persons in California who purchased certain 9Lives, Kibbles ‘n Bits, or Meow Mix-branded products from November 4, 2018, through December 31, 2022.
The case is Jeruchim v. The J.M. Smucker Co., No. 22-cv-6913 (N.D. Cal.).
Tennessee Bill Targets “Forever Chemicals” in Food
/in FFDCA, PFAS, State PolicyTennessee lawmakers have introduced legislation that would prohibit the sale of food containing PFAS beginning July 1, 2026, “unless the food is labeled as containing forever chemicals and discloses the known or possible health effects of the chemical.”
The legislation defines a “forever chemical” as a PFAS, described as a “group of man-made synthetic chemicals, including, but not limited to,” PFOA, PFOS, PFBS, and HFPO-DA, better known by the trade name GenX. Tennessee’s definition of “food” is the same used by the Federal Food Drug and Cosmetics Act (FFDCA), encompassing articles used for food or drink, chewing gum, and components of such articles.
SB 1818 and HB 1746 were introduced January 20, 2026. The House bill has since been assigned to the Agriculture & Natural Resources Committee.
Supreme Court to Weigh FIFRA Preemption in Roundup Cancer Warning Case
/in EPA, FIFRA, PesticidesThe Supreme Court has agreed to hear Monsanto’s appeal of a $1.2 million jury verdict in favor of a plaintiff who claimed Roundup weedkiller caused his cancer, focusing on whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state failure-to-warn claims when EPA has not required the warning.
At the core of the dispute is FIFRA section 24(b), 7 U.S.C. 136v(b), which forbids states from imposing labeling requirements “in addition to or different from those required under” FIFRA. Citing the Supreme Court’s 2005 decision in Bates v. Dow Agrisciences LLC, the Ninth and Eleventh Circuits have held that this language does not preempt state-law claims if the elements of the claim “parallel” FIFRA’s prohibition on misbranding.
However, more recently, in 2024, the Third Circuit created what many view as a circuit split, ruling that those courts erred by applying the “parallel requirements” test from Bates too generally. According to the Third Circuit, EPA regulations implementing FIFRA prohibit manufacturers from adding precautionary statements to product labels without EPA approval, making such labels preempted.
Monsanto’s petition for certiorari, filed April 4, 2025, asks the Court to adopt the Third Circuit’s analysis. “Because the jury verdict in this case requires Monsanto to include a cancer warning that EPA’s regulations did not require—and in fact affirmatively forbade it from adding—FIFRA preempts Respondent’s claim,” the petition argues.
Respondent John Durnell argues that the circuit split is both “irrelevant” and “illusory.” In his June 9, 2025, brief, he argues that the jury verdict did not hinge on the labeling claims because Monsanto also advertised Roundup as safe in television advertisements. He further maintains that there is no actual circuit split.
According to Durnell, there are two ways to update pesticide product labeling: by notification to EPA or by applying for amended registration. Due to a “unique quirk” in the Third Circuit case, the court explicitly limited its analysis to the first option and “express[ed] no opinion” on whether Monsanto was required to pursue the latter, the brief states.
The Supreme Court’s decision is likely to have massive implications for numerous suits alleging that glyphosate, the active ingredient in Roundup, is carcinogenic. EPA has repeatedly determined that glyphosate does not cause cancer, but the International Agency for Research on Cancer (IARC) has classified glyphosate as a probable human carcinogen.
The case is Monsanto Co. v. Durnell, No. 24-1068 (U.S.), petition for writ of certiorari granted January 16, 2026.