NMED Seeks Public Input on New Mexico’s PFAS Exemptions

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On October 8, 2026, the New Mexico Environment Department (NMED) held an in-person meeting to discuss whether certain products and materials should continue to be exempted from the state’s Per- and Poly-Fluoroalkyl Substances Protection Act.

The meeting follows the February 2026 passage of HJM 3, which directs NMED to report to the legislature “on the public health, environmental and economic risks of the exemptions codified in the” Act. The report must include recommendations on “whether such exemptions, such as the exemption for fluoropolymers, should be continued, modified or removed.”

HJM 3 characterizes the exemptions as “based on limited scientific literature regarding chemical degradation, environmental mobility and persistence, potential human exposure pathways and possible health impacts.”

The memorial also separately directs the New Mexico Environmental Improvement Board (EIB) to report on the Act’s implementation.

According to the meeting slides, NMED plans to present its interim findings to the Radioactive and Hazardous Materials Interim Committee on November 5, 2026. NMED is accepting public comments on the exemptions through December 31, 2026. The report to the legislature is due August 1, 2027.

NMED also held a webinar on HJM 3 on August 18, 2026.

Legal Background

Enacted in 2025, the Per- and Poly-Fluoroalkyl Substances Protection Act imposes phased prohibitions on products containing intentionally added PFAS. The Act also requires manufacturers to report products containing intentionally added PFAS to NMED by January 1, 2027. However, sixteen categories of products and materials—including fluoropolymers, used products, medical devices, semiconductors, certain refrigerants, and motor vehicles—are exempt from these requirements.

Earlier this year, EIB adopted regulations proposed by NMED to implement the statute. The regulations also establish a near-universal PFAS labeling requirement for consumer products, effective January 1, 2027. The labeling requirement applies even to products covered by the statute’s exemptions, subject to limited exceptions for used products, pesticides, veterinary products, medical devices, and drugs.

The District of New Mexico has since preliminarily blocked the labeling mandate on First Amendment grounds. A separate state-court challenge to the rule is also ongoing.

Focus on the Fluoropolymer Exemption

Much of the discussion surrounding the statutory exemptions has focused on fluoropolymers, a subclass of PFAS consisting of substances with polymeric per- or polyfluorinated carbon backbones. One of the best-known fluoropolymers is polytetrafluoroethylene (PTFE), also known by the brand name Teflon. PTFE is used in nonstick cookware, electronics, industrial equipment, medical devices, and numerous other applications.

The statutory exemption for fluoropolymers also encompasses a separate but related PFAS subclass known as polymeric perfluoropolyethers.

Fluoropolymers are the only exemption specifically identified in HJM 3. The memorial directs NMED to consider whether the exemptions, “such as the exemption for fluoropolymers,” should be modified. It also states that “additional health and environmental studies are needed to understand more fully the toxicological profiles, exposure risks and public health implications of fluoropolymers.”

Several plaintiffs in the federal litigation challenging the regulations implementing the Act have submitted comments urging NMED to recommend continuing the fluoropolymer exemption. They argue that fluoropolymers do not present health or environmental risks, serve critical or irreplaceable functions, and have been treated separately from other PFAS in other jurisdictions.

For more on New Mexico’s regulation of PFAS in products, visit our NM PFAS archive.

Idaho Judge Reads Supreme Court’s Roundup Ruling Narrowly

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A federal judge in Idaho has allowed a lawsuit alleging that Roundup causes cancer to go to trial, holding that the Supreme Court’s June 2026 ruling in Monsanto v. Durnell only precludes label-based theories against the weedkiller’s manufacturer. The case is an early indication that state-law tort claims may remain viable after Durnell if they do not depend on Roundup’s label.

Issued October 1, 2026, the order denies Monsanto’s motion for summary judgment on the plaintiff’s negligence and design defect claims. Although the court granted summary judgment on the plaintiff’s failure-to-warn claim, the court stressed that such a claim could succeed on different facts.

The case is one of thousands alleging that glyphosate, the active ingredient in past formulations of Roundup, causes cancer. Initially transferred to a multi-district litigation panel, the case was remanded to the District of Idaho for trial.

Meanwhile, the first state-court Roundup trial since Durnell is currently underway in St. Louis County, Missouri, which includes negligence and design-defect claims. That court found failure-to-warn allegations preempted, however.

EPA is also in the midst of reevaluating glyphosate’s human health risks, and recently requested scientific input on its review.

Legal Background

Many of the lawsuits against Monsanto have included claims that the manufacturer did not provide adequate warnings about Roundup’s alleged carcinogenicity. These “failure-to-warn” claims often focused on the absence of warning language on Roundup’s label.

On June 25, 2026, in Durnell, the Supreme Court held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts such claims. As discussed in a previous post, the court found that FIFRA and its implementing regulations require manufacturers to use EPA’s approved pesticide label. EPA has not determined that glyphosate causes cancer, and its approved Roundup label carries no cancer warning.

Because the state tort claim would require Monsanto to add a cancer warning, the Court reasoned that the claim would impose a labeling requirement “in addition to or different from” EPA’s approved label. FIFRA expressly prohibits such state-law requirements, so the Court found the claim expressly preempted.

Impossibility Preemption Inapplicable

Before the District of Idaho, Monsanto argued that all of the plaintiff’s claims should be barred by impossibility preemption. The court was unpersuaded, finding the doctrine inapplicable.

Impossibility preemption occurs when it is impossible to comply with state and federal requirements simultaneously. In Durnell, the Supreme Court did not reach impossibility preemption, finding express preemption sufficient to decide the case. But Monsanto pointed to a Durnell footnote observing that FIFRA bars selling a pesticide whose composition differs from the one described at registration. That made it impossible for Monsanto to change its formula, the company argued.

The court disagreed. “Monsanto cannot hide behind impossibility preemption when there is no evidence indicating it could not have pursued changing Roundup’s formula with the EPA had it wanted to,” the decision states. Monsanto knew of alternatives and ultimately changed the formula, the court noted, adding that “it was not impossible to ask EPA to change the formula.”

Non-Label Claims Survive Durnell

The plaintiff brings three claims: negligence, failure-to-warn, and design defect. Because of Durnell, the court held that the plaintiff cannot put on evidence about Roundup’s labeling. However, to the extent that they do not rest on the label, the court determined that none of the three claims are precluded by Durnell.

Addressing negligence, the court held that “nothing in Durnell” suggests “its holding should be read so broadly as to encompass negligence claims that are not based on labeling.” The court rejected Monsanto’s arguments that it was “prohibited” from making any claims differing from those approved by EPA. The plaintiff “is not necessarily saying Monsanto should have warned him that Roundup caused cancer; just that [Roundup] was potentially dangerous for his health,” the decision states.

However, the court noted that the distinction between negligence and failure-to-warn claims would be “a tough line for both parties to tow,” emphasizing that the parties should “hew closely to the negligence framework.”

The court likewise recognized that a failure-to-warn claim could theoretically survive on materials other than the product label, stating that such a claim “can still be pleaded in this type of case if facts exist to support it.”

Finally, the court determined that the plaintiff’s design defect claim was not a disguised failure-to-warn claim and could proceed. The “allegation is that Roundup’s chemical formulation is unsafe. Full stop,” the decision states. The court noted that causation, hotly disputed on competing expert evidence, is for the jury.

The court also cited the Supreme Court’s 2005 decision in Bates v. Dow Agrosciences LLC, which notes that common-law rules requiring manufacturers to design reasonably safe products free of defects do not require manufacturers to label or package products in a particular way.

Facts Preclude Failure-to-Warn Claim

Although the court determined that a failure-to-warn claim could theoretically survive Durnell, the court found evidentiary deficiencies in this case that were fatal to the claim here.

Besides product labeling, the only failure-to-warn theory that was not “severely under-developed” was based on advertising, the court held. But according to the court, the plaintiff admitted that he could not recall seeing Roundup advertisements during deposition. While the plaintiff later tried to recharacterize those statements, the court doubted that it cured the problem.

“Simply put, the Court is concerned that, were it to allow this claim to proceed to trial, Hoge would essentially be arguing a failure to warn labeling claim just without the word ‘label,’” the decision states. “This cuts against the Durnell decision.”

The case is Hoge v. Monsanto Co., No. 4:25-cv-277 (D. Idaho). Trial is set for February 2027.

California Scales Back Pesticide PFAS Bill, Enacts Disclosure-Only Law

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On September 27, 2026, California enacted legislation requiring the Department of Pesticide Regulation (DPR) to disclose the presence of PFAS in pesticides, defined as substances containing at least one fully fluorinated carbon atom.

The chaptered version of AB 1603 is far narrower than an earlier iteration. As amended in March 2026, the bill would have prohibited the registration or re-registration of pesticides with intentionally added PFAS, imposed labeling requirements, and phased out PFAS in pesticides altogether. More on those proposed requirements can be found in a previous post.

As chaptered, the law instead requires DPR to:

  1. Indicate if a pesticide contains PFAS ingredients in its pesticide use reporting database and add PFAS as a category of interest in the database;
  2. Include PFAS trends in its annual pesticide use report and other relevant reporting documents; and
  3. Publish a list of all registered pesticides containing PFAS on its website and submit it to local officials.

The disclosures apply beyond active ingredients. Specifically, they apply to PFAS intentionally added to a pesticide as active, adjuvant, or inert ingredients.

Notably, despite its narrowed scope, the legislation declares the Legislature’s intent to “[b]egin phasing out the use of PFAS pesticides and take additional steps to address other PFAS in pesticides.”

The database update is required on or before January 1, 2028, or the posting of the pesticide use reporting database containing 2026 data, whichever comes first, and annually thereafter. The list of registered pesticides containing PFAS is also due January 1, 2028, and must be updated within 60 days of the registration of a new pesticide containing PFAS.

Federal Recyclability Labeling Bill Would Impose National Criteria, FTC Enforcement

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In August, Senator Jeff Merkley (D-OR) and Representative Lou Correa (D-CA) introduced bicameral legislation that would establish national criteria and standardized labels for marketing packaging, food service products, and beverage containers as recyclable, compostable, reusable, or refillable.

H.R. 10048 and S. 5302, both introduced August 6, 2026, are House and Senate companion versions of the Truth in Labeling Act of 2026 and are substantively identical, aside from minor textual differences.

The House version has been referred to the House Committee on Energy and Commerce, and the Senate version has been referred to the Senate Committee on Commerce, Science, and Transportation.

Purpose and Findings

The Truth in Labeling Act states that there is significant consumer confusion about which covered materials are recyclable, compostable, reusable, or refillable, and identifies inconsistent labeling and improper use of the chasing arrows symbol as sources of consumer confusion. The legislation also states that the Federal Trade Commission’s (FTC’s) Green Guides are outdated and do not provide sufficient information to establish labeling criteria at the national level.

According to the bill’s sponsors, unclear or misleading labels can result in materials being placed in the wrong waste stream, contributing to contamination and making recycling and composting systems less effective.

The legislation is intended to create consistent national standards so that environmental labeling claims better reflect how materials are actually collected and processed.

What the Bill Would Do

The Truth in Labeling Act would establish nationwide definitions and labeling standards for the terms “recyclable,” “compostable,” “reusable,” and “refillable.” The requirements would apply to covered materials: packaging, food service products, and beverage containers. They apply when a producer chooses to label a covered material or is contractually obligated to. A producer is the person who affixes, or directs another to affix, a chasing arrows symbol, label, or other marking indicating recyclability, compostability, reusability, or refillability. It also includes a person who later modifies a properly labeled material so that it no longer qualifies.

A covered material that does not meet the applicable criteria could not display a label or marking, including the chasing arrows symbol or its equivalent, that would lead an ordinary consumer to believe the material is recyclable, compostable, reusable, or refillable.

EPA, in coordination with the FTC and with input from an advisory committee the bill would create, would issue regulations for determining whether a covered material meets the criteria. For recyclability and compostability, it would also describe acceptable qualified claims. EPA would also be required to establish or approve standardized on-package labels within two years of enactment. The standardized labels would include harmonized terminology and iconography and could be supplemented by standardized digital labels, such as QR codes.

EPA would also publish lists of covered materials that meet the criteria.

Recyclable Criteria

A covered material would be considered “recyclable” if it:

  1. Is made in accordance with the design guidelines of the relevant industry, if approved by the EPA Administrator;
  2. Does not include any components, including inks and adhesives, that prevent the material from being recycled, unless it includes on-package instructions describing how to remove and properly dispose of a separable component;
  3. Is collected, separated, or otherwise recovered from the waste stream through an established recycling program for which a responsible end market exists that covers at least 60% of consumers or communities where the item is sold; and
  4. Has a commercial value for recycling and a responsible end market.

A covered material that only meets criteria 1, 2, and 4 may still be eligible for a qualified recyclability claim, provided that:

  • The recycling program covers at least 40% of consumers or communities; and
  • The EPA Administrator has approved a plan for the covered material to be considered recyclable within two years of approval.

Converting covered materials into fuel, or using them to generate electricity, heat, or steam, would not be considered recycling and would not count toward the 60% or 40% thresholds.

The bill would also require all plastic covered materials to bear a resin identification code. The code could not be placed inside a chasing arrows symbol unless the material meets the recyclability criteria and inside placement is the only physically feasible placement, as determined by EPA. This provision would preempt any conflicting state requirement.

Compostable Claims

A covered material would be considered “compostable” if it:

  1. Is designed to be compostable in accordance with the design standards and guidelines of its industry;
  1. Adheres to ASTM International 6400, 6868, or equivalent standard specifications, and does not contain intentionally added PFAS or heavy metals incompatible with compost;
  2. Is capable of being collected and accepted by at least 50% of the established composting programs in the US; and
  3. Is processed by itself or with other covered material categories through controlled biological degradation to make compost or a substantially similar soil amendment.

A covered material that is capable of being collected and accepted by at least 30% of the established composting programs in the US and meets criteria 1, 2, and 4 would be eligible for a qualified claim.

The legislation also specifically prohibits non-compostable plastic or plastic-lined covered material from marketed in a way that might mislead the public, such as green or brown tinting or coloring.

Reusable and Refillable Claims

A covered material could be labeled “reusable” or “refillable” if it:

  1. Is designed to be reusable or refillable in accordance with the relevant industry design standards and guidelines;
  2. Is designed for durability and maintenance to extend the useful life of the covered material and to reduce demand for new production of the covered material;
  3. Can be recirculated or refilled multiple times for the same or a similar purpose in the original format of the covered material;
  4. Is supported by a system or physical infrastructure that is in place to ensure the possibility and likelihood of reuse or refill, provided by a producer or a third party, and designed for convenient reuse or refill; and
  5. is not intended for single use by a consumer.
Deadlines and Enforcement

Enforcement would begin two years after EPA establishes or approves the standardized labels, which are themselves due within two years of enactment. After that, selling, using, distributing, or importing a covered material in violation of the Act would be a deceptive practice under the FTC Act.

The legislation would make exceptions for covered material manufactured more than six months prior to that date. It makes similar exceptions if the criteria are changed and provides a safe harbor for materials on EPA’s published lists.

Apart from the resin identification code provision, the bill would not preempt state law.

State-Level Litigation

The proposed federal standards come as similar recyclability labeling requirements face legal challenges at the state level. As discussed in a previous post, a federal court recently blocked on a preliminary basis enforcement of California’s “Truth in Recycling” law after concluding that challengers were likely to succeed on First Amendment and vagueness claims.

Among other requirements, California’s law generally required products and packaging to satisfy a “60/60” standard for collection and processing before recyclability claims could be made. The Truth in Labeling Act similarly incorporates a 60% threshold into its federal recyclability criteria, although the federal proposal establishes a different regulatory framework and expressly provides for qualified recyclability claims at a lower threshold.

Connecticut Issues Guidance on PFAS Labeling and Notification Requirements

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Last month, the Connecticut Department of Energy and Environmental Protection (DEEP) released guidance on the state’s PFAS product restrictions, including the labeling and notification requirements that took effect for twelve product categories on July 1, 2026.

The guidance clarifies that the notification and labeling requirements apply to products manufactured before the July 1 effective date, despite the statute’s exemption for products manufactured prior to an applicable prohibition. This is because the notification and labeling requirements “are requirements, not prohibitions,” DEEP states.

“Manufacturers may direct retailers to apply a label for products that are already in their inventory,” the guidance adds.

DEEP also states that it is not issuing compliance extensions. “If your product is out of compliance, please submit the notification and begin labeling products immediately,” it says.

Other provisions of the guidance clarify that:

  • For online sales, the label disclosure must be provided on the same webpage as the product, without requiring the consumer to click to another webpage;
  • Labels may be affixed to the packaging of a product or the product itself, so long as they are clearly visible prior to sale;
  • Products subject to federal labeling requirements, such as those arising under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), are not subject to the state’s labeling requirement; and
  • Because “no person” may sell noncompliant products, retailers are required to stop offering any product that DEEP determines to be noncompliant.

The guidance is posted on DEEP’s PFAS in products webpage.

Covered Product Categories

The twelve product categories subject to the July 1, 2026, labeling and notification deadline are:

  • Apparel (excluding outdoor apparel for severe wet conditions)
  • Carpets or rugs
  • Cleaning products
  • Cookware
  • Cosmetic products
  • Dental floss
  • Fabric treatments
  • Children’s products
  • Menstruation products
  • Textile furnishings
  • Ski wax
  • Upholstered furniture

Beginning January 1, 2028, Connecticut will prohibit the sale or distribution of products in the categories listed above—as well as outdoor apparel for severe wet conditions and turnout gear—if they contain intentionally added PFAS. Outdoor apparel for severe wet conditions and turnout gear are subject to slightly different disclosure requirements, which took effect January 1, 2026.

DEEP has approved multiple label disclosure options. Most recently, it approved a symbol consisting of an outline of an Erlenmeyer flask with the word “PFAS” inside—the same design required under New Mexico’s near-universal PFAS labeling requirement, which a federal court has preliminarily blocked.

More information on the labeling and notification requirements can be found in a previous post.

Court Dismisses “Organic” Claims Against Scotts Miracle-Gro Over PFAS Allegations

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On September 11, 2026, the Southern District of California granted The Scotts Company’s motion to dismiss a lawsuit challenging “organic” representations on soil and fertilizer products allegedly containing PFAS.

According to the court, the plaintiffs allege that Scotts engaged in false advertising by representing certain Miracle-Gro soil and fertilizer products as “organic” even though testing allegedly showed that the products contained PFAS, including PFOA and PFOS. They also argue that Scotts failed to disclose the presence of PFAS and represented that the products were safe for use on edible plants and residential gardens.

The plaintiffs allege that they relied on the “organic” representations when purchasing the Miracle-Gro products and would not have purchased the products, or would have paid less for them, had they known the products contained PFAS.

“Organic” Claims and Safe Harbor

The court noted that California’s safe harbor doctrine generally prevents plaintiffs from bringing unfair competition claims based on conduct that is expressly permitted by law.

Here, the court took judicial notice of the California Department of Food and Agriculture’s (CDFA’s) lists of Registered Organic Input Material (OIM) products. The court noted that the products at issue appeared on the OIM lists. The court further explained that, under California regulations, products registered as OIM are permitted to use the term “organic” on their labels.

As a result, the court concluded that Scotts’ use of the term “organic” was expressly permitted under California’s regulatory scheme and that the plaintiffs could not use California consumer-protection laws to challenge conduct that California regulations specifically permitted. The court dismissed the plaintiffs’ claims under California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA) without leave to amend because it concluded that the safe harbor doctrine would continue to bar them.

Acknowledging a split in authority over whether the safe harbor spans beyond consumer protection statutes, the court held that it should, because it would otherwise allow plaintiffs to circumvent the doctrine by framing consumer protection claims as common law causes of action. Accordingly, the court also dismissed the plaintiffs’ breach of express warranty, breach of implied warranty, and unjust enrichment claims.

PFAS Omission and Other Misrepresentation Claims

The court reached a different conclusion regarding the plaintiffs’ allegation that Scotts failed to disclose the presence of PFAS. The court found that, because California law does not expressly permit Scotts to omit a PFAS disclosure, the safe harbor doctrine did not automatically bar this theory.

However, the court concluded that the plaintiffs did not adequately plead their omission claim. As the court explained, a partial-omission theory generally requires an existing representation that is true but misleading because important information was left out. According to the court, the plaintiffs instead alleged that Scotts’ representations that the products were “organic” and safe for use on edible plants were themselves false. The court therefore found that those allegations could not support a partial-omission theory as pleaded.

The plaintiffs’ separate misrepresentation theory, that the product packaging suggested the products were safe for use on edible plants, also failed. According to the court, the plaintiffs alleged that they relied on the products being labeled “organic” when deciding to purchase them, but did not allege that they relied on the imagery or representations concerning use on edible plants. Thus, the court concluded that they did not adequately plead reliance on that alleged misrepresentation.

Because the court found that the plaintiffs may be able to correct these deficiencies with additional facts or theories, the court dismissed the alternative misrepresentation and omission claims with leave to amend. The court gave the plaintiffs 30 days from the September 11 order to file an amended complaint.

Standing for Unpurchased and Untested Products

Scotts also argued that the plaintiffs lacked standing to assert claims concerning Miracle-Gro products they had not personally purchased or tested. The court noted that there is no controlling Ninth Circuit authority on whether class-action plaintiffs may assert claims based on products they did not purchase. However, the court followed what it described as the “prevailing view” in the Ninth Circuit: plaintiffs may pursue claims involving unpurchased products where the products and alleged misrepresentations are substantially similar.

The court found that standard satisfied for the products identified in the complaint. Among other similarities, the products were Miracle-Gro soil and fertilizer products represented as organic, marketed as safe for use on edible plants, alleged to contain PFAS, and alleged to omit disclosure of PFAS. The plaintiffs independently tested seven products, including the products they purchased, and all seven contained PFOS, while six contained both PFOS and PFOA. Based on those allegations, the court concluded that the plaintiffs had standing to pursue claims concerning the identified products, including products they had not personally purchased or tested.

The court did not, however, extend standing to unidentified products. Although the plaintiffs sought to challenge all Scotts Miracle-Gro soil and fertilizer products represented as organic, the court limited their claims to the products specifically identified in the complaint.

The case is Calcagno v. Scotts Co. LLC, No. 3:25-cv-02661 (S.D. Cal.).

California Governor Vetoes Recycled-Content Substantiation Bill

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On September 27, 2026, California Governor Gavin Newsom vetoed Assembly Bill 2253 (“AB 2253”), legislation intended to strengthen substantiation requirements for recycled-content claims made on consumer products.

In his veto message, Governor Newsom expressed concern that expanding recycled-content documentation requirements would unduly burden manufacturers and suppliers already facing economic pressures “caused by federal tariff and trade policy actions.” He stated that adding new compliance requirements could compound those pressures while providing limited additional benefit to consumers.

What AB 2253 Would Have Done

California law currently requires manufacturers and suppliers making recycled-content claims about plastic food containers to maintain documentation supporting those claims. Manufacturers must document that the claimed recycled material was diverted from the waste stream during the manufacturing process or after consumer use, and that the claim complies with the Federal Trade Commission’s (FTC’s) Green Guides.

AB 2253 would have expanded these requirements to all products making voluntary recycled-content claims beginning January 1, 2030.

The bill also would have imposed more specific substantiation requirements. A recycled-content claim could not exceed the amount of third-party-certified recycled content introduced into the manufacturer’s or supplier’s overall supply stream for the material used in that product line. Claims would also have been required to rely on specified chain-of-custody methodologies for calculating recycled content.

For products other than plastic food containers, manufacturers and suppliers would have been required to provide supporting documentation to the California Attorney General upon request if the Attorney General suspected a violation. The bill also provided an option for manufacturers and suppliers to use qualified independent third-party auditors to review their recycled-content accounting and supporting records.

Governor Newsom’s veto leaves California’s existing requirements for recycled-content claims applicable to plastic food container products in place, rather than extending the proposed substantiation framework to recycled-content claims across all product categories.

Competing Views

Supporters of AB 2253 argued that the additional requirements were necessary to prevent misleading recycled-content claims. Assemblymember Tasha Boerner, the bill’s author, argued that some companies use recycled-content credits and accounting mechanisms to make claims that do not accurately reflect the recycled material used in their products.

Californians Against Waste, which sponsored AB 2253, criticized the veto as a missed opportunity to bring greater truth and accountability to recycled-content claims. Kayla Robinson, the organization’s Legislative Director, argued that consumers should be able to expect a “made with recycled content” claim to reflect recycled material actually used in the product, rather than recycled-content credits or other accounting mechanisms.

Federal Legislation on Recycled-Content Claims

The veto also comes amid federal efforts to address how recycled-content claims may be substantiated. The proposed Recycled Materials Attribution Act of 2026 (H.R.7502) would prohibit misleading recycled-content advertising while expressly recognizing mass-balance accounting as an acceptable method for substantiating recycled-content claims when used in accordance with a third-party certification system. The federal bill would also direct the FTC to update the Green Guides and issue guidance establishing a framework for mass-balance recycled-content claims.

On September 16, 2026, the House Energy and Commerce Committee voted 28-0 to order the bill reported to the full House.

The differing approaches reflect an ongoing debate over how recycled-content claims should be substantiated while providing consumers with accurate information.

Spray Foam Producer Challenges California’s Compelled Research Funding

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A producer of spray polyurethane foam is mounting a constitutional challenge to a California Department of Toxic Substances Control (DTSC) action requiring the company to fund research into replacement technology.

At issue is a DTSC determination requiring producers of spray foam to pay two cents for every pound sold in California into a fund supporting a green research grant. According to the plaintiff, Quadrant Performance Materials, the grant may be used either to develop spray foam containing less unreacted methylene diphenyl diisocyanates (MDI) or to reengineer the tools used to apply spray foam to reduce MDI exposures.

In a complaint filed September 21, 2026, Quadrant says it cannot conduct its own research with the grant money, is ineligible to receive a grant, has no say in what or how the recipient conducts its research, and has no right to use or profit from any resulting innovation.

“DTSC has left Quadrant with a Hobson’s choice: fund research aimed at replacing its own product—using methods and assumptions it has no control over, and that could put it out of business—or stop selling spray foam in California,” the complaint states.

Quadrant alleges that the requirement violates the First Amendment because it compels the company to subsidize speech and research with which it disagrees. It also alleges violations of the dormant Commerce Clause and Import-Export Clause, contending that the requirement unlawfully burdens interstate commerce and imposes a duty on goods brought into California from other states.

Regulatory Background

The lawsuit arises under California’s Safer Consumer Products Program (SCP), which allows DTSC to regulate “priority products” containing “candidate chemicals.”

MDI is one such candidate chemical. In 2014, DTSC identified spray foam products containing MDI as a priority product based on concerns that unreacted MDI in spray foam might cause workplace asthma. Quadrant, however, states that “DTSC has never identified a single person” harmed by spray foam products in the state.

According to the complaint, Quadrant submitted an abridged alternatives analysis to DTSC in 2025 that did not identify any feasible alternatives. In May 2026, DTSC issued a final determination imposing requirements on the continued sale of spray foam containing MDI in California. In addition to the green research fund fees, those requirements include labeling and training provisions that Quadrant does not challenge in the lawsuit.

The two-cent-per-pound fee is required from all spray foam producers for five years or until DTSC collectively receives $4 million, whichever occurs later. Based on its sales, Quadrant expects to pay approximately $10,000 into the fund each quarter.

Constitutional Claims

Quadrant seeks declaratory and injunctive relief based on three constitutional claims.

First, Quadrant argues that the fee violates the First Amendment because it forces the company to subsidize speech to which it objects. Quadrant contends that the research funded by the fees is not “neutral, disinterested science” because DTSC “has predetermined its premises and its objective.”

“DTSC, without substantiation, asserts that Quadrant’s product is harmful; the research being funded is attempting to find a replacement for MDI which Quadrant maintains does not exist or is not feasible; and California requires that this research uses green chemistry and/or green engineering principles,” the complaint states.

Quadrant further argues that the fee does not fall within exceptions for compelled funding of government speech or comprehensive regulatory schemes. Among other things, it points to the fact that the research fund is administered by a third party rather than DTSC.

Second, Quadrant argues that the requirement violates the dormant Commerce Clause by placing an excessive burden on interstate commerce. Citing Pike v. Bruce Church, Inc., Quadrant asserts that the scheme’s burdens on interstate commerce exceed its putative local benefits. Quadrant and “virtually all” other spray foam manufacturers operate outside California, the complaint states, meaning the requirement’s practical effects fall “almost entirely on interstate commerce.”

By contrast, the lawsuit alleges that the requirement’s asserted benefits are speculative because there is no guarantee that any funded project will succeed, become commercially viable, or ultimately be made available to manufacturers. “California has therefore imposed present burdens on interstate commerce in exchange for uncertain future benefits that will likely never materialize,” Quadrant states.

Third, Quadrant alleges that the scheme violates the Import-Export Clause because it imposes duties on goods imported from other states without congressional consent. The complaint acknowledges that the Supreme Court has held that the clause applies only to imports from foreign countries, but argues that it should be interpreted more broadly.

The case is Quadrant Performance Materials, LLC v. Butler, No. 2:26-cv-10704 (C.D. Cal.), filed September 21, 2026.

Philip A. Moffat Presents on TSCA CBI Expirations at SASSI Fall Meeting

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Verdant Law is pleased to share that attorney Philip A. Moffat presented on confidential business information (CBI) expirations at the Fall Meeting of the Synthetic Amorphous Silica and Silica Industry Association (SASSI) on October 1, 2026.

The presentation covered practical pitfalls that can arise when CBI claims expire and are renewed under the Toxic Substances Control Act (TSCA). Mr. Moffat also discussed ongoing litigation challenging EPA’s disclosure of CBI due to a procedural error, which may bear on the Agency’s disclosures of commercially sensitive information.

A copy of Mr. Moffat’s presentation is available here.

New Jersey Introduces “Protecting Against Microplastics Act”

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A New Jersey lawmaker has introduced legislation to prohibit the sale or distribution of certain products containing microplastics and require product labeling in the interim.

The “Protecting Against Microplastics Act,” Assembly Bill 5452, was introduced September 14, 2026. Importantly, the bill’s labeling requirements and prohibition would reach beyond products with intentionally added microplastics—they would also apply to products that have the potential to generate synthetic polymer microparticles or other secondary microplastics.

The labeling requirements would apply to four product categories: cleaning products, cosmetics, foodware, and potentially ingestible products. The sales prohibition would apply to the same products, except foodware.

The bill defines “microplastic” as “a material, five millimeters or less in diameter, composed of synthetic polymers and chemical additives, that has been added to a product over the course of the manufacturing or industrial process.”

“Potentially ingestible product” includes “any product which is edible, designed to be applied to the facial area, or capable of being swallowed or inhaled.” The bill lists chewing gum, tea bags, coffee grounds, talcum powder, and pet food as examples.

Phased Rollout

The bill’s requirements would take effect in three phases.

One year after enactment: Manufacturers of covered products sold in the state must disclose, on an exterior product label, the presence of intentionally added microplastics or the potential to generate secondary microplastics.

Two years after enactment: Manufacturers of products that contain intentionally added microplastics, or that could generate synthetic polymer microparticles or other secondary microplastics, must include the statement “This product contains microplastics” in both English and Spanish. The statement must appear on the product handle or on any surface that contacts food or beverages, and in online product listings. Manufacturers also could not claim a product is “free of microplastics” if microplastics were intentionally added.

The labeling requirement would not apply if microplastics are present only in electronic or internal components. It would also not apply to products that are too small to fit a two-square-inch label and have no exterior container, wrapper, or attached tag. A product that already carries a microplastics label under another state or federal law would be deemed compliant.

Three years after enactment: Selling, offering for sale, or distributing for sale any cleaning, cosmetic, or potentially ingestible product would be prohibited if it contains intentionally added microplastics or could generate synthetic polymer microparticles or other secondary microplastics. Technically unavoidable trace quantities would not trigger a violation.

Notably, the bill’s accompanying Statement describes only the second-year labeling requirement and does not mention the first-year disclosure, which overlaps with it.

Enforcement and Funding

The Division of Consumer Affairs could audit manufacturers and impose civil administrative penalties of $1,000 to $20,000 per violation, with each day of a continuing violation counted separately.

The bill appropriates $3 million: $2.5 million to the Department of Environmental Protection for a source reduction program and microplastics research and monitoring, and $500,000 to the Department of Law and Public Safety for enforcement.

What to Watch

The bill’s definition of microplastics resembles the one in California’s microplastics candidate chemicals listing, which covers plastics less than five millimeters in their longest dimension. By contrast, Rhode Island legislation introduced earlier this year used a definition closer to the European Union’s. That bill died in committee.

State-level microplastics regulation is still in its infancy, and it remains unclear which definition states will ultimately adopt.

The bill has been referred to the Assembly Environment and Solid Waste Committee.