As the US Environmental Protection Agency (EPA) under Administrator Lee Zeldin lays out an ambitious regulatory agenda related to perfluoroalkyl and polyfluoroalkyl substances (PFAS), state lawmakers, state attorneys general, nongovernmental organizations, and plaintiffs’ lawyers continue to impact evolving compliance and liability risk.
While recent federal announcements have reaffirmed the agency’s focus on science-driven regulation, interagency coordination, addressing PFAS contamination at the source, and enforcing the “polluter pays” principle, many of the proposals can be viewed as continuations or refinements of past initiatives.
At the state level, however, regulation of PFAS is expanding rapidly, often ahead of the science and the recently extended federal timelines, with varying standards and definitions. At the same time, litigation is broadening to target not only chemical manufacturers but also consumer goods companies, secondary manufacturers, and downstream users. Companies must track federal developments while preparing for a growing patchwork of state obligations and legal exposure.
In this Insight based on our Earth Day webinar series, we discuss the emerging state-level PFAS regulations and litigation trends that are reshaping compliance strategies and legal risk across industries, and provide key takeaways for companies that manufacture, sell, or use PFAS-containing products.
More than two dozen states have enacted or proposed laws regulating PFAS in consumer products. Many of these laws prohibit the sale of goods containing “intentionally added” PFAS, a term that is typically defined broadly and can include chemicals added to impart a functional or technical effect such as water, grease, or stain resistance. Some states also include numerical thresholds and testing standards for certain products. Commonly targeted categories of products regulated under these laws include carpets and rugs, apparel, cookware, cosmetics, cleaning products, juvenile products, and food packaging.
While many of these state laws are structured to phase in over time, the scope and definitions vary significantly. For example, Maine, Minnesota, and New Mexico have enacted broad bans that begin with a short list of products and expand toward more comprehensive restrictions by the early 2030s, including various reporting deadlines along the way. These laws are often accompanied by certification requirements that may apply to importers as well as manufacturers, creating additional compliance obligations across the supply chain.
Implementation challenges have already begun to surface. Maine, which led with an early and sweeping ban, eventually narrowed its initial scope and extended deadlines after facing industry pushback and practical and administrative hurdles. Other states are working on how to define “currently unavoidable uses” (which can serve as an exemption to most bans, but not to reporting), with Maine recently finalizing rules for such determinations and Minnesota still developing its own process. Legal challenges are also beginning to emerge, including a pending lawsuit in Minnesota over the inclusion of cookware in that state’s PFAS ban.
States are also actively regulating PFAS in air, water, soil, and biosolids. For example, nearly half of US states (24) have adopted enforceable limits or non-binding guidance for PFAS in drinking water, with many incorporating maximum contaminant levels, notification thresholds, or monitoring requirements that differ from the EPA’s national standards. Similarly, over 20 states have established action levels for PFAS in soil and groundwater, with several imposing remediation triggers or cleanup mandates.
Other states have begun regulating PFAS discharges in surface water, often as part of National Pollutant Discharge Elimination System (NPDES) permitting processes. Biosolids have drawn increasing attention as well, with some states enacting outright bans on land application and others imposing numeric limits or monitoring obligations for PFAS. Air emissions, while less uniformly regulated, are emerging as another area of state regulation. About half a dozen states have adopted screening levels or even binding standards for PFAS in ambient air.
Although PFOA and PFOS remain the most commonly regulated substances, several states have expanded their focus to additional PFAS compounds, such as PFBS, PFNA, PFHxS, and others.
These state-level actions may carry broader implications. Standards adopted under state law can influence site investigations and remedial actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the federal Superfund law. In addition, state hazardous substance designations can trigger cleanup liabilities and affect real estate transactions, due diligence, and redevelopment planning.
Litigation related to PFAS continues to expand across sectors and legal theories. While the multidistrict litigation (MDL) over aqueous film-forming foam (AFFF) remains the most visible forum, new waves of lawsuits are targeting a wider range of industries and product categories.
Secondary Manufacturers
Recent years have seen an uptick in claims against secondary manufacturers—for example, companies that incorporate PFAS-treated materials into finished products but do not manufacture PFAS themselves. Industries such as chrome plating, paper and plastic manufacturing, and textiles, have all been named in suits involving groundwater contamination, landfill leachate, and other alleged pathways of PFAS release.
Agricultural contamination cases are also becoming more prevalent, particularly where biosolids have been applied to farmland. Plaintiffs have alleged economic damages tied to reduced crop yields, livestock health issues, and diminished property values. These suits are likely to increase as states and the EPA move forward with risk assessments and the regulation of PFAS in biosolids.
Consumer Products
Another fast-growing area is consumer product litigation. An increasing number of plaintiffs have filed class actions challenging marketing and labeling practices for goods that allegedly contain PFAS, including personal care products, cosmetics, clothing, tableware, and food packaging. These cases typically allege that companies either failed to disclose the presence of PFAS or made statements (e.g., “clean,” “non-toxic,” “natural,” “healthy,” or “eco-friendly”) that misled consumers. These lawsuits generally seek recovery of alleged economic damages under the theory that they would have paid less for a product absent the allegedly misleading marketing or labeling.
While early decisions are signaling difficulties for plaintiffs’ attempts to gain footholds of these initial legal theories, some courts have allowed cases to proceed past the pleading stage and plaintiffs’ claims are continuing to evolve. Defendants have invoked a range of defenses, including federal preemption, lack of standing, insufficient testing methodologies, causation, failure to plead, and indemnification. Courts have also considered whether claims fall within the primary jurisdiction of agencies such as the US Food and Drug Administration or the Consumer Product Safety Commission, depending on the product at issue.
Regardless of outcome, the volume of PFAS-related demand letters and pre-litigation inquiries continues to rise, underscoring the need for early consultation with outside legal counsel and legal review of marketing materials, labeling, and supply chain disclosures.
As the EPA moves forward with implementing its federal PFAS agenda, many companies will need to balance federal expectations with a fast-evolving set of state regulations and legal risks. States are increasingly driving the regulatory agenda on PFAS in both products and the environment, and litigation risk is spreading beyond traditional defendants to include retailers, importers, and secondary manufacturers.
Companies should consider taking a proactive approach that includes the following:
The future of PFAS regulation will be determined by agency rulemaking but also state legislatures, courts, and evolving public expectations. Staying ahead of these developments will require cross-functional coordination among legal, compliance, product development, marketing, and supply chain teams.