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.”
New Executive Order Targets False “Made in USA” Claims
/in Enforcement, Made in USAOn March 13, 2026, President Trump signed an executive order directing the Federal Trade Commission (FTC) to prioritize enforcement of false “Made in America” claims.
“Americans have a right to clear, accurate, substantiated, and accessible information regarding whether products advertised as “Made in America” are actually made in the United States,” the order states. “Yet in the age of the modern digital marketplace, foreign manufacturers and sellers represent that their products are made in the United States to target patriotic consumers when, in fact, those products are largely produced and manufactured in other countries.”
The executive order includes several directives:
Even before the executive order, the FTC had signaled increased scrutiny of “Made in USA” claims. The agency designated July 2025 as “Made in the USA” Month and sent warning letters to four manufacturers regarding potentially deceptive origin claims. The FTC also contacted Amazon and Walmart, urging both platforms to strengthen oversight of claims made by third-party seller.
Enforcement activity is also occurring in federal procurement. DOJ is currently prosecuting two federal contractors who allegedly misrepresented the origins of forklifts sold to the US government.
For more information on the FTC’s “all or virtually all” standard governing “Made in USA” claims, visit the FTC’s website.
Michigan Bill Would Mandate PFAS Labeling for 13 Product Categories
/in PFAS, Right-to-Know, State PolicyOn March 4, 2026, Michigan lawmakers introduced legislation that would impose PFAS reporting and labeling requirements on manufacturers of 13 product categories.
Senate Bill 816’s reporting provisions would take effect first, prohibiting the manufacture or sale of covered products on January 1, 2028, unless prior notification is submitted to the state. The labeling requirement—the phrase “Made with PFAS chemicals”—would apply one year later, on January 1, 2029. Intentionally added PFAS in covered products would not be prohibited so long as the notification and labeling requirements are met.
PFAS is broadly defined as “all members of the class of fluorinated organic chemicals containing at least 1 fully fluorinated carbon atom.” The bill grants the Michigan Department of Environment, Great Lakes, and Energy discretionary rulemaking authority to implement its provisions.
Covered Products
The bill covers the following product categories:
These categories largely mirror those covered by Connecticut’s PFAS notification and labeling provisions, which take effect this July.
The bill excludes products manufactured before its effective date, which in Michigan is typically 90 days from the end of the session at which a bill is passed. Also excluded are used products, products preempted by federal law, medical drugs and devices, and replacement parts for products manufactured before the effective date. The bill does not apply to businesses with fewer than 10 employees.
Notifications and Labeling
Notifications would be required at least one month before a covered product’s release, including chemical identifiers, PFAS amounts and concentration ranges, and manufacturer contact information. Manufacturers would be required to update notifications upon any change.
Labeling is established as a manufacturer responsibility unless a wholesaler or retailer agrees to assume it. The bill would require labels to be clearly visible prior to sale and sufficiently durable to remain legible for the product’s useful life.
Textile EPR Legislation Introduced in Minnesota
/in EPR, PFAS, State PolicyOn February 25, 2026, Minnesota introduced legislation to implement an extended producer responsibility (EPR) program for textiles, carpet, and mattresses.
The “Responsible Textile Waste Recovery Act,” HF 3713, would require producers of covered products to appoint, join, and fund a producer responsibility organization (PRO), which would collect covered products for free and promote their reuse, repair, and recycling.
An initial PRO would be required to fully implement its plan within approximately one year of approval, granted no later than July 2030. Many interim deadlines are left undefined or are tied to implementing regulations promulgated by the Minnesota Pollution Control Agency (MPCA). After the initial PRO’s plan is approved, MPCA could approve additional PROs to jointly administer the program.
The bill uses a cascading definition of “producer”: if the manufacturer who owns or licenses the brand is present in the state, they are the producer; if not, responsibility falls to the brand owner or exclusive licensee, then the importer, and finally the distributor, retailer, or wholesaler. HF 3713 excludes businesses that sell only secondhand covered products and producers with less than $1 million in annual aggregate global gross revenue from the program.
Internet sellers would be subject to an additional requirement to notify MPCA and the PRO of all third-party sellers with sales of covered products over $1 million the preceding year and provide those sellers with information describing their responsibility to comply with the program.
HF 3713 specifically requires that PROs address PFAS in covered products, including efforts to avoid PFAS contamination during their recycling and outreach to discourage the use of PFAS “and other harmful chemicals.” The bill would also authorize MPCA to set performance standards for covered products.
Legal Challenges to State EPR
The bill’s introduction comes amid ongoing industry challenges to the legality of other state-level EPR programs.
Last month, the Oregon District Court granted a preliminary injunction against Oregon’s packaging EPR program, the first such program to take effect in the country. The court based the injunction on arguments that the program unduly restricts interstate commerce and unlawfully delegates regulatory authority to the PRO, particularly as it relates to producer fees.
Separately, in October 2025, the Small Business Administration (SBA) argued in comments that PRO-imposed producer fees might violate federal antitrust laws.
HF 3713 appears to anticipate some of these arguments. The bill provides that an approved PRO may engage in anticompetitive conduct to the extent necessary to meet its statutory obligations and grants immunity “from liability under state laws relating to antitrust, restraint of trade, and unfair trade practices.” The bill also requires approved PROs to undergo annual holistic third-party audits.
That said, HF 3713 contains minimal discussion about producer fees, other than requiring that they be eco-modulated—i.e., adjusted to incentivize design choices that facilitate reuse, repair, and recycling—and approved by MPCA, although PROs must also outline strategies to reduce existing fees or “fee redistribution mechanisms that equitably distribute costs among producers” in a periodically updated “needs assessment.”
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.
The case concerns unqualified recycled content and biodegradability claims on the front labels of various Igloo products. According to the court, these include “Made From Biodegradable Materials” and “Made With Post Consumer Recycled Plastic Material,” which is 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.
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.