Bill Targets Misleading Recycled Content Claims, Endorses Mass-Balance Accounting

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A bipartisan group of lawmakers has introduced legislation to prohibit misleading recycled content claims and establish mass-balance accounting as an acceptable method for substantiating them.

The Recycled Materials Attribution Act of 2026 was introduced by Rep. Langworthy (R-NY) on February 11, 2026, and is currently pending before the House Energy and Commerce Committee.  The text of H.R. 7502 was made publicly available this month.

The bill would prohibit misleading recycled content advertising claims, enforceable by the Federal Trade Commission (FTC).  Fuels produced and sold as an end product would also be ineligible for recycled content marketing.  At the same time, the legislation recognizes mass-balance accounting as an acceptable method for substantiating recycled content claims, provided its use complies with a third-party certification system.  The legislation defines recycling to include both mechanical and non-mechanical recycling.

The bill would require the FTC to update the Green Guides—the agency’s guidance for environmental marketing claims—within one year to reflect these requirements.  The FTC would additionally be required to issue guidance clarifying that mass balance accounting representations be based on “competent and reliable scientific evidence” and provide a “clear and consistent framework” for recycled content claims.

A separate provision would preempt state and local laws relating to the legislation’s prohibition and enforcement provisions.

The bill is backed by the Recycling Leadership Council (RLC), a coalition that includes the American Chemistry Council, American Circular Textiles, and the Consumer Brands Association.

“Advanced technology in recycling is transforming how we recover and reuse materials that would otherwise end up in landfills, but our regulations have remained stagnant,” Rep. Langworthy said in a statement released by the RLC.  “This much-needed legislation changes that by modernizing and updating the rules with a uniform national standard that protects consumers from misleading claims while giving American manufacturers the certainty they need to invest, innovate, and compete.”

Critics, including the Plastic Pollution Coalition, argue that the bill “creates a system that enables backdoor accounting practices to substantiate marketing claims while promoting chemical recycling,” including “chemical recycling processes that are just turning plastics into fuels.”

EPA Cannot Use Low Exposure to Justify DecaBDE Inaction, Ninth Circuit Rules

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The Ninth Circuit has ruled that EPA’s decisions not to regulate certain decabromodiphenyl ether (decaBDE) exposures under the Toxic Substances Control Act (TSCA) were not supported by substantial evidence, ordering the agency to regulate or better justify its inaction in four areas: recyclable articles, disposal, wastewater, and sewage sludge.

The May 13, 2026, ruling leaves EPA’s regulations for decaBDE intact but remands them back to agency to regulate—or better defend its decision not to regulate—those areas.  It is the first time a court has weighed in on TSCA section 6(h), which requires EPA to reduce exposures to certain persistent, bioaccumulative, and toxic chemicals (PBTs) “to the extent practicable.”

Congress added section 6(h) in 2016.  EPA issued a risk management rule for decaBDE in 2021 and amended it in 2024, targeting the flame retardant’s use in products.  But the agency declined to regulate various other exposures, citing low exposures and prohibitively high costs.

Siding with environmental groups, the Ninth Circuit rejected EPA’s low-exposure rationale outright.  Because TSCA does not require EPA to conduct a risk evaluation before regulating section 6(h) PBTs, Congress already determined that any exposure warrants a regulatory response, the court held.

“[I]t is beyond EPA’s authority to justify a decision not to regulate based on there being low levels of decaBDE,” the opinion states.  “TSCA § 6(h)(4) permits EPA to consider decaBDE levels for the purpose of deciding between regulatory tools, but not in deciding whether to use a regulatory tool at all.”

The court stopped short of holding that high costs can never justify a decision not to regulate under section 6(h), but it found EPA’s cost evidence consistently inadequate.  For recyclable articles, for example, EPA’s economic analysis relied on studies not specific to decaBDE and failed to consider regulatory options short of an outright ban.

Substantial Evidence

EPA’s other justifications fared no better under TSCA’s “substantial evidence” standard, which the court characterized as a “searching review.”

On disposal, EPA argued regulations were unnecessary because the Resource Conservation and Recovery Act (RCRA) already reduces exposures to the extent practicable.  But the court held that “EPA cannot evade its responsibilities under TSCA to regulate decaBDE disposal merely by invoking EPA’s compliance with another statute regulating solid waste disposal,” while also observing that RCRA does not cover all possible disposals.

For wastewater, the court found that EPA had ignored data contradicting its position that decaBDE is not released to water.  And, on recycling, it held that the agency gave “undue weight” to its position that regulation would undermine its general pro-recycling stance.

The court also rejected EPA’s fallback argument that staged regulation justifies its current inaction.  Section 6(h) “expressly places regulation of decaBDE on an expedited timeline,” the court held, and EPA has made no commitment to address these exposures in future rulemaking.

The case is Alaska Cmty. Action on Toxics v. United States EPA, No. 21-70168 (9th Cir.).

New Jersey Considers Expanding PFAS Ban to Apparel

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New Jersey lawmakers are weighing a ban on PFAS in apparel, which has already passed the state’s upper house unanimously.

The bill, S1281, would prohibit the manufacture or sale of apparel containing intentionally added PFAS two years after passage.  Apparel is defined broadly, encompassing items such as diapers, footwear, and outdoor apparel for severe wet conditions.  PPE, military apparel, and protective apparel designed to be used for the safe operation of a motorcycle or off-highway vehicle would be exempt.

S1281 builds on legislation New Jersey enacted earlier this year—the Protecting Against Forever Chemicals Act—which prohibits intentionally added PFAS in cosmetics, carpets, and food packaging.  The apparel bill would be integrated into that same framework, inheriting its definition of PFAS as “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom,” as well as its exemption for technically unavoidable trace quantities.

The Protecting Against Forever Chemicals Act was signed into law on January 12, 2026.  Its sales prohibitions and a PFAS labeling requirement for cookware will take effect on January 12, 2028.

S1281 passed the New Jersey Senate on March 23, 2026, and referred to the Assembly.  The companion Assembly bill, A5048, was introduced May 11, 2026.

EPA Avoids Court Order on Organophosphates, but Timeline Concerns Remain

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The Ninth Circuit has declined to force EPA to act on a petition brought by nonprofits targeting organophosphate pesticides, calling the request “premature” despite noting concerns with the agency’s response timeline for certain pesticides.

The 2021 petition, brought by environmental and farmworker groups, asks EPA to revoke Federal Food, Drug, and Cosmetic Act (FFDCA) food tolerances and cancel Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registrations for organophosphate pesticides due to health harms.

In a memo issued April 27, 2026, the court generally accepted EPA’s plan to address the disputed pesticides in three groups, finding the delay thus far “below the threshold of what we have generally found to be unreasonable.”

Under EPA’s proposed schedule, the agency plans to respond to the first group of pesticides in 2026.  For the second group, EPA plans to address the FFDCA issues in 2026 and the FIFRA issues during registration review.  EPA plans to address the third group entirely in conjunction with registration review.

Still, the court expressed concern about “the lack of a concrete timeline” for resolving some of the petitioners’ FIFRA claims, particularly those involving pesticides that may present higher risks.

“EPA admits that it will not complete its registration review for any of the thirteen pesticides by the October 2026 statutory deadline,” the memo states.  “If, by the expiration of that statutory deadline, EPA still ‘does not offer a timetable’ for resolving the FIFRA-related claims for those particular pesticides presenting higher levels of risk,” the outcome may be different, the court said.

“If EPA chooses not to address the chemicals posing the greatest risk by the 2026 deadline, Petitioners are free to file a second mandamus petition as to those chemicals,” the court added, using the legal term for a petition seeking to compel agency action.

Registration Review

The court was partly persuaded by the existence of the October 2026 registration review deadline itself, which Congress extended from October 2022 through the Pesticide Registration Improvement Act of 2022, commonly known as PRIA 5.

“Congress thus judged that EPA needs more time to complete the FIFRA registration review process for the types of pesticides at issue,” the memo states.  “This weighs heavily against granting relief with respect to Petitioners’ FIFRA-related claims until after the congressional deadline has passed.”

The October 2026 deadline for registration reviews applies to pesticides registered before October 1, 2007, when Congress formally required EPA to review each registered pesticide at least once every fifteen years to ensure that it can still be used without unreasonable adverse effect on human health or the environment.

Human Health Concerns    

The 2021 petition argues that organophosphate pesticides can cause a range of unreasonable adverse effects, including neurodevelopmental harm in children at exposures “far below” EPA’s current regulatory endpoint.  According to the petition, those harms include impaired motor and mental development, reduced IQ, attention disorders, and autism associated with low-level exposure.

These alleged harms were not sufficient for the court to force EPA’s hand, however.

“The breadth of [Petitioners’] request was perhaps reasonable in 2021 in light of what the EPA characterizes as its earlier conservative assumption ‘that all the [organophosphates] cause similar neurodevelopmental effects.’”  But “all parties now seem to agree that the degree of risk does not appear to be consistent for all thirteen pesticides still at issue.”

For example, the petitioners conceded that the pesticides chlorethoxyfos, tribufos, and terbufos are lower priority at oral argument, while emphasizing greater risk associated with bensulide, the court said.  “On this record, we cannot hold that human risks justify granting the petition as to all thirteen pesticides.”

The case is In re Pesticide Action Network North America, No. 25-3955 (9th Cir.), petition for a writ of mandamus filed 6/25/2025.  The memorandum disposition is unpublished.

OEHHA Moves to List Four New Carcinogens Under Prop 65

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On May 8, 2026, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) announced its intent to list four substances as known to the state to cause cancer under Proposition 65:

  • Welding fumes
  • Hydrochlorothiazide
  • Voriconazole
  • Tacrolimus

All four listings are being proposed pursuant the labor code mechanism.  They follow International Agency for Research on Cancer (IARC) determinations that those substances are Group 1 carcinogens— meaning there is sufficient evidence of carcinogenicity in humans.

Comments on the proposed listing are due June 8, 2026.  OEHHA has opened two separate comment portals: one for welding fumes and one for the other three substances.

According to IARC, exposure to hydrochlorothiazide, voriconazole, and tacrolimus occurs primarily through their use as medications.  Hydrochlorothiazide is a diuretic prescribed for hypertension and edema; voriconazole is an antifungal used to treat or prevent invasive aspergillosis and other serious fungal infections; and tacrolimus is an immunosuppressant.

Should any of these listings be finalized, businesses that have significant exposures to the listed chemicals will have one year before Prop 65 warning requirements take effect.

Senator Introduces CRA Resolution to Nullify EPA’s PFAS Reporting Extension

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Senator Sheldon Whitehouse (D-RI) has introduced a joint resolution to disapprove EPA’s April extension of the start PFAS Reporting Rule’s reporting period start date.

The Congressional Review Act resolution, filed as S.J.Res. 187 on April 27, 2026, would immediately nullify EPA’s extension rule if passed.  The resolution currently has no cosponsors.

EPA’s extension pushed the start of the reporting period to January 31, 2027, or 60 days following the effective date of amendments narrowing the rule’s scope, whichever is earlier.  EPA proposed those amendments in November 2025, which would add exemptions for de minimis concentrations and imported articles, among others.

The extension was published on April 13, the same day the reporting period was scheduled to open.  EPA had already delayed the start of the period twice before, citing technical difficulties.

The PFAS Reporting Rule is a one-time PFAS reporting obligation under TSCA section 8(a)(7) for persons who manufactured or imported PFAS for commercial purposes between 2011 and 2022.  More on the rule is available in our archive.

EPA to Host May 6 Webinar on TSCA CBI Claim Expirations

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On May 6, 2026, at 4:00 p.m. EDT, EPA will host a webinar on expiring confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA).

According to EPA, the webinar will help companies, stakeholders, and the public understand the regulatory requirements governing the lifecycle of CBI claims, including how to determine whether a claim is expiring and how to request an extension.  EPA will also demonstrate the Central Data Exchange (CDX) application that TSCA submitters must use to request extensions, address frequently asked questions, and outline effective ways to communicate with the agency about the CBI claim expiration process.

Registration is available here.

Last week, EPA released the first list of expiring CBI claims and announced the deployment of the CDX extension request tool in advance of the first expirations, which begin on June 22, 2026.  Additional details on the list of expiring claims and the CDX tool are available in a previous post.

Texas AG Investigates Lululemon Over PFAS Concerns

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On April 13, 2026, Texas Attorney General Ken Paxton announced the issuance of a civil investigative demand against Lululemon as part of an investigation into the potential presence of PFAS in the activewear company’s apparel.

The investigation will examine whether Lululemon has misled consumers about the safety, quality, and health impacts of its products, prompted by “emerging research and consumer concerns” that “raised questions about the potential presence of certain synthetic materials and chemical compounds in their apparel.”  According to the press release, the company’s health-conscious customers would not expect PFAS in its products given Lululemon’s sustainability- and performance-focused marketing.

As part of the investigation, the office of the attorney general says it will review “the company’s Restricted Substances List, testing protocols, and supply chain practices to determine whether Lululemon’s products comply with its stated safety standards.”

Three days later, on April 16, Lululemon published a webpage entitled “Created without PFAS: What to know about lululemon’s products,” stating that the company does not use PFAS in its products today and requires vendors to conduct regular testing.  “Our ongoing focus is to help prevent the unintentional reintroduction of PFAS into our products through ongoing testing, monitoring, and collaboration with suppliers and third parties,” the page says.

The webpage also links to Lululemon’s restricted substances list, which sets a 50 ppm limit on all PFAS as measured by total organic fluorine and more stringent limits on specific compounds such as PFOS and PFOA.

EPA Releases List of Expiring CBI Claims, CDX Tool for Extensions

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On April 23, 2026, EPA announced the release of the first list of expiring confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA).

Each claim on the list is identified by TSCA case number, expiration date, and submission type.  The inaugural list includes 294 claims that are set to expire between June 22 and August 1, 2026.  EPA says it will update the list monthly.

The list is intended to help meet TSCA’s requirement that EPA notify submitters at least 60 days before a claim expires.

According to the press release, EPA has also deployed a new “TSCA Section 14(e) CBI Claim Extension Request” tool in CDX, its electronic filing system.  Companies can use this tool to request a 10-year extension for an expiring claim, which must include substantiation of the need for continued CBI protection.

Requests for extension must be submitted at least 30 days before a claim’s expiration date.  EPA warns that failure to submit a timely request may result in public disclosure of the CBI without further notice to the submitter.

In addition to publishing the list, EPA is notifying submitters directly through CDX as claim expirations approach.  EPA advises companies to ensure their contact information in CDX is current to receive these notices.

CBI claims appear across a wide range of TSCA submissions.  The first list includes claims made on new chemical applications (such as PMNs and LVEs), Chemical Data Reporting submissions, import and export materials, and section 8(e) substantial risk notifications, among others.

Expiration Dates

As discussed in detail in a previous post, 2016 amendments to TSCA now mean most CBI claims expire ten years after assertion.  Because those amendments were enacted on June 22, 2016, the first expirations under the revised statute will occur on June 22, 2026.

Companies should be mindful, however, that CBI claims for specific chemical identities can expire less than 10 years after assertion if another company has also asserted a claim for the same chemical.  That is because expiration dates for chemical identity claims are set 10 years from the first approved confidentiality claim for the chemical identity.

Companies should also note that certain CBI claims are exempt from expiration: specifically, those that are statutorily exempt from substantiation requirements and EPA CBI review.

More information on CBI expirations can be found in a January 2026 Federal Register notice and on EPA’s website.

Update (May 7, 2026)

Yesterday, May 6, 2026, EPA published a revised list of expiring claims.  The revised list strikes out a number of submissions that are actually not subject to expiration.  According to EPA, these include submissions where:

  • All CBI claims were withdrawn in the submission at some point after it was filed
  • The submission contains only exempt CBI claims
  • The initial submission was made prior the enactment of the Lautenberg Act
  • The submission is of a type excluded from CBI review
  • All claims were denied

EPA also published two other lists: a list of CBI chemical identities that are expiring in June or July 2026, and a list of companies with claims expiring in June or July 2026.  All three lists can be found on EPA’s website.

Pet Food Brand to Modify ‘Made in USA’ and ‘All Natural’ Claims After NAD Review

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Sundays for Dogs will discontinue certain “Made in USA” and “all natural ingredients” claims following recommendations from the Better Business Bureau’s National Advertising Division (NAD), the industry self-regulatory body announced April 17, 2026.

According to NAD, the dog food manufacturer sources most of its ingredients domestically.  However, because “certain key ingredients, including beef bone and fish oil, are sourced from New Zealand,” NAD recommended that Sundays add qualifying language to its “Made in USA” representations.

“Consistent with Federal Trade Commission guidance, NAD determined that because these ingredients are essential to the product’s function, an unqualified ‘Made in USA’ claim is not appropriate, even if the amount of foreign content is small,” the decision summary states.

Other contested claims included “all natural ingredients” and “100% meat and superfoods.”  When accompanied by imagery suggesting whole fruits and vegetables, NAD found those claims misleading because Sundays uses nutrient extracts rather than whole-food ingredients.  Similar claims were deemed acceptable in other contexts, however.

NAD also found adequate substantiation for the brand’s “no synthetic additives” claim, but recommended that Sundays stop implying that competing products contain synthetic additives.

The challenge, which concerned claims on the company’s website and social media channels, was brought by rival pet food maker The Farmer’s Dog, Inc.  Sundays agreed to comply with NAD’s recommendations.