New Mexico Inches Closer to a Labeling Requirement for All PFAS-Containing Products

These requirements were included as part of a set of regulations (New Rule) proposed pursuant to New Mexico’s HB 212 (PFAS Protection Act), signed into law earlier this year. The proposed New Rule is subject to public notice and an evidentiary hearing that is expected to occur early next year.

In the meantime, NMED held a public webinar on October 22, during which it gave an overview of the PFAS Protection Act, the proposed New Rule, and specifically its labeling requirements, along with a timeline for the entire process. Included in the slide presentation were proposed (but not finalized) product label symbols and packaging warning language, including an outline of a laboratory flask holding an exclamation point and the acronym PFAS, and the statement: “CAUTION: Associated with environmental impacts and health effects such as cancer. www.env.nm.gov/pfas,” in both English and Spanish. NMED has taken the position that the labeling of products containing intentionally added PFAS will allow consumers to “decide if they want to bring a product containing or made with PFAS into their home or business,” although the benefits of making such a broad and possibly alarmist statement in the absence of context are far from clear.

NMED has also published a set of FAQs on the proposed labeling requirements. Links to the proposed New Rule, presentation slides, and labeling FAQs are available here.

The PFAS Protection Act prohibits the sale of products containing intentionally added PFAS in three phases. Four categories (food packaging, dental floss, juvenile products, and firefighting foam) are prohibited by January 2027. Additional categories (textiles, cosmetics, carpets and rugs, textile furnishings, upholstered furniture, cleaning products, feminine hygiene products, ski wax, and fabric treatments) are prohibited by January 2028. Generally, all other products are prohibited by January 2032, unless there is a Currently Unavoidable Use (CUU) determination or another exemption. The statute also requires manufacturers to report certain information to NMED about each of their PFAS-containing products prior to January 1, 2027. The statute itself does not mandate product labeling but rather states that the Environmental Improvement Board (EIB), an independent body that has the final say on all proposed environmental regulations, may adopt rules to require such labeling. The proposed New Rule would require the labeling of all PFAS-containing products by January 1, 2027, even if the products are not prohibited by that date or are otherwise exempted or subject to a CUU determination. Some exempted products may still be eligible for a waiver.

Significantly, and unlike most other states, New Mexico’s PFAS Protection Act distinguishes between fluoropolymers (e.g., Teflon or PTFE) and non-polymeric PFAS, and exempts fluoropolymer-containing products (e.g., certain cookware) from prohibitions and reporting requirements, but not automatically from labeling. The fluoropolymer exemption is highly significant since fluoropolymers themselves are generally non-toxic, non-reactive, and highly resistant to degradation. Lumping together all PFAS (polymers and non-polymers alike), while convenient for legislators and others, is widely considered to be unscientific and inappropriate, and may cause unnecessary concern and confusion among the general public.

Based on comments submitted to the EIB by industry groups and other interested parties, next year’s hearing will likely address the following concerns.

• Whether labeling will be required even for PFAS-containing products that the state legislature has exempted from other requirements.
• Whether the proposed labeling, in its application to all PFAS as a group regardless of their individual properties, violates First Amendment rights against compelled speech.
• Whether the labeling requirement may be preempted for products for which labeling is already regulated by federal law, such as pesticides, pharmaceuticals, and medical devices.
• Whether the blanket requirement to label all affected products and their packaging by January 1, 2027, just a few months after the possible adoption and implementation of the New Rule, would be exceedingly burdensome and costly for manufacturers.
• Consideration of the fact that the legislature intentionally made the labeling requirement discretionary, unlike the other provisions of the statute.

Although New Mexico is a relatively small market for consumer goods, the proposed labeling requirements are significant and represent another problem for manufacturers and importers attempting to sell to markets nationwide. There is also the distinct possibility that the concept of labeling all PFAS-containing consumer products, for example, may spread to other states. As a result, manufacturers need to keep themselves abreast of what may be coming down the pike in the very near future. The Consumer Products team at AFS is standing by to answer your questions.