Prop 65 Warning for Titanium Dioxide Struck Down

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California’s Proposition 65 warning requirement for respirable titanium dioxide violates the First Amendment, the District Court for the Eastern District of California ruled on August 12, 2025, in The Personal Care Products Council v. Bonta, No. 2:23-cv-01006.

The decision is the latest in a series of rulings invalidating Prop 65 warnings for chemicals with disputed health risks. In 2023, the Ninth Circuit struck down a warning requirement for glyphosate, and in early 2025, the Eastern District of California invalidated a warning requirement for dietary acrylamide.  Blog posts on those cases can be found here and here.

The titanium dioxide order follows the same analytical framework. First, the court held that the warning failed the test set forth in Zauderer v. Office of Disc. Counsel, 471 U.S. 626 (1985), which allows for compelled commercial disclosures when they are “purely factual and uncontroversial.”

“[T]he parties admit that there is a clear debate over whether Listed Titanium Dioxide cases cancer in humans,” the order states.  “The Court finds the Prop 65 warning would likely improperly elevate ‘one side of a legitimately unresolved scientific debate.’”

As in the glyphosate and acrylamide cases, the court focused on how an average consumer would perceive the warning, not just whether each sentence was literally accurate.  “Even though each sentence on its own may be factually true, ‘the totality of the warning’ is nonetheless misleading,” the order states.

Second, the court found that the warning failed intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) and was therefore unconstitutional.  The court concluded that the warning does not advance California’s interest in public health because titanium dioxide’s risks are not confirmed, and the state has less burdensome alternatives—such as making information available online.

Titanium dioxide is commonly used as a whitening pigment in cosmetic and personal care products. Its Prop 65 listing applies only to “airborne, unbound particles of respirable size.”

New Mexico to Hold Webinar on PFAS Labeling on September 25

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On September 25, 2025, the New Mexico Environment Department (NMED) will hold an informational webinar on product labelling requirements for PFAS at 1pm MT (3pm ET).  To register, email NMED-PFAS@env.nm.gov.

Under HB212, enacted in April 2025, NMED is authorized to adopt rules requiring that manufacturers label products containing PFAS.  Earlier this month, New Mexico’s Environmental Secretary reportedly told lawmakers that NMED would soon release draft regulations to implement HB 212, including labeling requirements.

PFAS Restrictions and Reporting Under HB 212
  • Labeling authority: NMED may require PFAS labeling.
  • Phased bans: Restrictions on intentionally added PFAS begin in 2027, expand to more product types in 2028, and culminate in a ban on most products in 2032. Exemptions apply for certain products, such as medical devices, and for uses designated by NMED as “currently unavoidable.”
  • Reporting requirement: By January 1, 2027, manufacturers must report information on intentionally added PFAS, including purpose of use and amount (by CASRN).

More details are available on NMED’s PFAS webpage.

California Legislature Moves to Ban PFAS in Many Consumer Products

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On September 12, 2025, California’s Assembly and Senate approved SB 682, a bill imposing sweeping prohibitions on the use of intentionally added PFAS in a wide range of consumer products.  The legislation now heads to Governor Gavin Newsom for consideration.

As reported in a previous post, SB 682 would prohibit the distribution, sale, or offering for sale of cleaning products, dental floss, juvenile products, food packaging, and ski wax with intentionally added PFAS starting in 2028, and cookware beginning in 2030.

Since that earlier update, lawmakers amended the bill to exempt certain components of cleaning products until 2031.  The final version also clarifies that, beginning in 2028, cleaning products must comply with California Air Resources Board volatile organic compound (VOC) regulations without reliance on regulatory variances.

Governor Newsom has until October 12, 2025, to act on the bill.

EPA to Fast-Track Chemical Reviews for AI and Data Center Projects

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EPA will prioritize review of premanufacture notices (PMNs) for chemicals tied to artificial intelligence (AI) and data center projects, the agency announced on September 18, 2025.

“We inherited a massive backlog of new chemical reviews from the Biden Administration which is getting in the way of projects as it pertains to data center and artificial intelligence projects,” EPA Administrator Lee Zeldin said.  “The Trump EPA wants to get out of the way and help speed up progress on these critical developments, as opposed to gumming up the works.”

The policy implements President Trump’s Executive Order 14318, “Accelerating Federal Permitting of Data Center Infrastructure,” which directs the agency to expedite permitting for qualifying projects under a variety of environmental statutes, including the Toxic Substances Control Act (TSCA).

What Projects are Eligible?

Two types of projects can qualify for expedited review:

  1. Data center projects requiring more than 100 megawatts (MW) of new load dedicated to AI inference, training, simulation, or synthetic data generation.
  2. Covered component projects, which include the materials, products, and infrastructure needed to build or operate such facilities—such as energy infrastructure, power plants, semiconductors, networking equipment, and data storage systems or software.

To be eligible, a project must also meet at least one of the following criteria:

  • A commitment of $500 million or more in capital expenditures.
  • An incremental electric load addition of more than 100 MW.
  • Direct relevance to national security.
  • Official designation as a qualifying project by a federal department.
How to Request Priority Review

According to updated EPA guidance, the new priority review process will take effect on September 29, 2025. To request it, PMN submitters must:

  • Attach a cover letter to their PMN submission via EPA’s Central Data Exchange (CDX).
  • Identify the specific data center or covered-component project the chemical will support.
  • Show that the project meets at least one of the executive order’s qualifying criteria.
  • Provide supporting documentation, such as permitting records, project announcements, or letters of support, plus details on how the chemical will be used.

EPA has posted detailed instructions for companies seeking priority review on its PMN guidance webpage.

Verdant Law to Lead ACA Webinar on FTC’s “Made in the USA” Enforcement

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Verdant Law is pleased to announce that Phil Moffat and Irene Hantman will lead an American Coatings Association (ACA) webinar on the FTC’s renewed focus on “Made in the USA” claims.  The session will be held on September 25, 2025, from 1–2pm ET.

Although the current Trump administration has generally adopted a deregulatory stance, “Made in the USA” claims have been a notable exception.  This past July, the FTC declared “Made in the USA Month” and announced stepped-up enforcement, including warning letters to major retailers such as Amazon and Walmart.

This webinar will provide insight to help attendees align marketing strategies with legal standards, avoid enforcement risks, and ensure “Made in the USA” claims are both effective and compliant.

Attendance is limited to, but free for, ACA members.  Register here.

Coalition Letter to Congress Calls for Streamlined TSCA Chemical Reviews

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A collection of over 100 trade associations is calling on Congress to reform the Toxic Substances Control Act (TSCA) to “ensure a regulatory system that balances human health and environmental concerns with domestic supply chain and innovation needs and supports growth in our manufacturing sector.”

The American Alliance for Innovation (AAI) letter, sent to congressional leaders on September 8, 2025, suggests a number of “improvements and clarifications” to the statute, including:

  • Ensuring timely and predictable reviews of new chemicals;
  • Avoiding unnecessary regulation, including overuse of Consent Orders (COs) and Significant New Use Rules (SNURs) that discourage adoption of innovative and sustainable chemicals;
  • Following a risk-based approach to regulating a chemical’s intended use in commerce that is rooted in actual uses and real-world scenarios;
  • Strengthening the scientific standards included in TSCA for what constitutes “the weight of the scientific evidence;” and,
  • Providing additional clarity to other sections of TSCA that govern testing, regulatory petitions, and data sharing.

AAI suggests that these changes be incorporated into any legislation to extend TSCA’s fee authority, which expires at the end of fiscal year 2026.

Are You Ready for Mandatory GRAS Notifications?

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The second Trump administration’s first Unified Regulatory Agenda of Federal Regulatory and Deregulatory Actions, published September 4, 2025, indicates that FDA is close to initiating a rulemaking to overhaul the generally recognized as safe (GRAS) regulations—a change that could significantly raise regulatory expectations for food manufacturers and ingredient suppliers.

What Does the Unified Agenda Say?

According to the unified agenda listing, “the proposed rule, if finalized, would amend the [GRAS] regulations…to require the mandatory submission of GRAS notices for the use of human and animal food substances that are purported to be GRAS.”  Substances that are listed as GRAS for the intended use by regulation, or have been granted a “no questions” letter by FDA, would be exempted.

The listing further notes that the rulemaking would clarify that FDA maintain and regularly update a public-facing GRAS notice inventory for all substances subject to the mandatory GRAS notice requirement for their intended uses.  It would also clarify the process by which FDA would determine that a substance is not GRAS.

The agenda indicates that a proposed rule is expected to be published in October 2025.

Putting It in Context

Under current regulations, companies can self-affirm that a substance—which includes ingredients as well as substances added indirectly (such as from food packaging)—is GRAS based on scientific evidence.  FDA’s GRAS notification program is voluntary; companies may notify FDA but are not required to.

The proposed rule would shift the system so that formal submission (notice) to the FDA becomes mandatory for most substances purported to be GRAS, except those already regulated or with prior FDA “no questions” letters.

The agenda listing follows Health and Human Services Secretary Robert F. Kennedy, Jr.’s March 2025 directive to FDA to explore revising the GRAS final rule and related guidance to eliminate the self-affirmation pathway.  “Eliminating this loophole will provide transparency to consumers, help get our nation’s food supply back on track by ensuring that ingredients being introduced into foods are safe, and ultimately Make America Healthy Again,” Secretary Kennedy said.

California Packaging EPR Rulemaking Resumes With Key Deadlines Ahead

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On August 22, 2025, CalRecycle published proposed regulations to implement California’s SB 54, which imposes a state extended producer responsibility (EPR) program for single-use packaging and plastic food service ware.  Public comments on the proposal are due October 7, 2025, the same day CalRecycle will hold a hybrid public hearing.

The rulemaking is CalRecycle’s second attempt to implement SB 54.  In March 2025, California Governor Gavin Newsom directed CalRecycle to restart the rulemaking process, citing concerns with its costs.

What does SB 54 Require?

SB 54 is designed to shift the burden of plastic pollution from consumers to producers, which are “typically the companies that create—or package their products in—single-use packaging and single-use plastic food service ware,” according to CalRecycle.  Beginning in 2027, producers will pay fees totaling $500 million per year to offset recycling costs and environmental impacts.

By 2032, all covered materials must be recyclable or compostable, and at least 65% must actually be recycled.  SB 54 also mandates a 25% source reduction in plastic covered material compared to 2023.

Upcoming Compliance Deadlines for Producers

Producers face several near-term obligations under the program:

  • September 5, 2025: Deadline to register with California’s inaugural producer responsibility organization (PRO), Circular Action Alliance (CAA), which will oversee program administration and fee collection.
  • September 15, 2025: CAA opens its reporting portal.
  • November 15, 2025: Deadline to submit 2023 supply data through the portal.

As discussed in a previous blog post, an increasing number of states are implementing packaging EPR laws.  Our team is available to help businesses navigate this evolving regulatory landscape.

Phil Moffat to Present at Chemical Watch Regulatory Summit North America 2025

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Verdant Law is pleased to announce that Phil Moffat will speak at Chemical Watch’s Regulatory Summit North America 2025, which will take place September 15–18 in Alexandria, Virginia.

On September 15 at 11:50 am, Mr. Moffat will present on the Trump administration’s implementation of the Toxic Substances Control Act (TSCA) New Chemicals Program.  At 12:40 pm, Mr. Moffat will join an extended Q&A panel titled “Stakeholder perspectives on new chemical trends.”

Registration for the summit is open for both in-person and virtual attendance.

Update – September 16, 2025

Slides from Mr. Moffat’s presentation, “Balancing Innovation and Risk Management: TSCA’s New Chemical Review Process,” are now available here.

California Legislature Advances Bill to Expand PFAS Product Prohibitions

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California has taken another significant step towards restricting the use of PFAS in consumer products with the advancement of SB 682, a bill that would add several new product-category PFAS bans beginning in 2028.  SB 682 has already passed the state Senate and is pending in committee in the Assembly.

What Products Would be Affected by SB 682?

Starting in 2028, SB 682 would prohibit the sale of products with intentionally added PFAS for the following product categories:

  • Cleaning products;
  • Dental floss;
  • Juvenile products;
  • Food packaging; and
  • Ski wax.

Starting in 2030, SB 682 would also prohibit the sale of cookware containing intentionally added PFAS.  Used products are exempt from the scope of the bill.

Existing Restrictions

SB 682 would not be the first California law to address the use of PFAS in the above product categories.  Since 2023, the state has prohibited the sale of plant fiber–based food packaging containing intentionally added PFAS, and beginning in 2024, cookware manufacturers have been required to disclose PFAS use on food contact surfaces.

California also enacted a ban on intentionally added PFAS in certain juvenile products in 2023.  SB 682 would broaden that restriction, extending it to any “product designed for use by infants and children under 12 years of age,” with limited exceptions.

Looking Ahead

If enacted, SB 682 would be California’s most far-reaching PFAS law to date, and its full Democratic support among voting senators signals a strong likelihood of passage in the Assembly.  Given California’s outsized market influence, the bill could also have spillover effects beyond state borders, encouraging broader adoption of PFAS-free product formulations.