Colorado’s PFAS Chemicals Consumer Protection Act
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Colorado’s PFAS Chemicals Consumer Protection Act

Brownstein Client Alert, August 25, 2022

In 2022, Colorado joined a growing list of states seeking to regulate the use of perfluoroalkyl and polyfluoroalkyl substances (“PFAS”) in consumer products. The Colorado General Assembly enacted House Bill 22-1345, the PFAS Chemicals Consumer Protection Act, now codified at C.R.S. Sections 25-15-601 to -604. The law adds another way Colorado can address PFAS beyond existing measures, such as House Bills 19-1279 and 20-1119, which restricted the use of firefighting foam; the Water Quality Control Commission’s adoption of a PFAS Narrative Policy (Policy 20-1) in 2020; and the Water Quality Control Division’s implementation of Policy 20-1 through monitoring, source investigation and effluent limits in discharge permits.

The PFAS Chemicals Consumer Protection Act substantially broadens the scope of PFAS regulation by seeking to limit sources of PFAS introduced into the state. Among other components, the law creates new product disclosure requirements and product prohibitions.

By Jan. 1, 2024, any manufacturer of cookware containing “intentionally added PFAS chemicals” in the handle of the product or in any product surface that comes into contact with food or beverages (“regulated cookware”) must list the presence of such PFAS chemicals on the product label. The label also must include both a hyperlink and QR-code (or equivalent) leading to a webpage providing information about why the PFAS chemicals are intentionally added. Any online listings of regulated cookware products must include the same disclaimer and description of why PFAS chemicals are intentionally added. Regulated cookware that is not compliant with the labeling requirements may not be sold, offered for sale or distributed in Colorado.

The law also prohibits—or “phases out”—the sale and distribution of certain classes of consumer products if they contain intentionally added PFAS chemicals according to the following deadlines:

Phase 1 – prohibited after Jan. 1, 2024

  • Carpets and rugs
  • Fabric treatments
  • Food packaging
  • Juvenile products
  • Oil and gas products

Phase 2 – prohibited after Jan. 1, 2025

  • Cosmetics
  • Indoor textile furnishings
  • Indoor upholstered furniture

Phase 3 – prohibited after Jan. 1, 2027

  • Outdoor textile furnishings
  • Outdoor upholstered furniture

The reach of the law is expansive. PFAS chemicals are defined as a “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” And “intentionally added PFAS chemicals” is defined as “PFAS chemicals that a manufacturer has intentionally added to a product and that have a functional or technical effect on the product, including “PFAS chemicals that are intentional breakdown products of an added chemical.” Given these definitions and the regulated product categories listed above, manufacturers, distributors and retailers—particularly those in Colorado’s outdoor recreation and food and beverage industries—may encounter significant difficulties related to product development, sourcing, manufacturing and supply and distribution.

The proliferation of PFAS legislation and regulation in Colorado, in other states and at the federal level creates the potential for overlapping or contradictory regulatory regimes. For example, the Water Quality Control Division is currently evaluating PFAS-related biosolids requirements in Colorado at the same time the Environmental Protection Agency continues to conduct its risk-based evaluation of biosolids. Stakeholder meetings will continue through the fall. Potentially affected parties should consider becoming involved in legislative and regulatory efforts at the federal and state levels to help create manageable PFAS regulatory regimes.

In addition, consumer product companies should (1) review their contract manufacturing and distribution agreements to determine what provisions may be triggered by these regulations and what changes will need to be made; (2) take affirmative action to understand the identity, presence, and use of any PFAS chemicals in connection with their products; and (3) work with their counsel to coordinate testing and manufacturing assessments in a manner that allows businesses to evaluate products and processes while managing risk.

This document is intended to provide you with general information regarding Colorado's PFAS Chemicals Consumer Protection Act. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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