Revision: Dec. 13, 2023, 5:12 p.m.
2024 SESSION
24-2805.1
08/02
HOUSE BILL [bill number]
AN ACT relative to prohibiting certain products with intentionally added PFAS.
SPONSORS: [sponsors]
COMMITTEE: [committee]
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ANALYSIS
This bill restricts the use of per and polyfluoroalkyl substances in certain consumer products sold in New Hampshire.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-2805.1
08/02
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to prohibiting certain products with intentionally added PFAS.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Consumer Protection; Per and Polyfluoroalkyl Substance Use Restricted. Amend RSA 149-M by inserting after section 63 the following new section:
149-M:64 Consumer Products; Per and Polyfluoroalkyl Substance Use Restricted.
I. In this section:
(a) “Adult mattress” means a mattress other than a crib mattress or toddler mattress.
(b) “Alternative” means a substitute process, product, material, chemical, strategy, or combination of these that has been evaluated and serves a functionally equivalent purpose to a PFAS in a product that has less risk to human health or the environment than the use of PFAS in the product.
(c) “Carpet or rug” means a fabric product marketed or intended for use as a floor covering in households or businesses.
(d) “Chemical” means a substance with a distinct molecular composition or a group of structurally related substances and includes the breakdown products of the substance or substances that form through decomposition, degradation or metabolism.
(e) “Consumer product” means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes. “Consumer products” includes product categories that are normally used by households, but designed for or sold to businesses, such as commercial carpets or commercial floor waxes.
(f) “Cosmetic” means an article for retail sale or professional use intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.
(g) “Department” means the department of environmental services.
(h) "Distributor" has the same meaning as RSA 149-M:33, II.
(i) "Fabric" means a textile or any item made in whole or part from a natural, man made, or synthetic fiber or yarn, and includes but is not limited to, leather cotton, silk, jute, hemp, wool, viscose, nylon or polyester.
(j) "Fabric treatment" means a product intended to be applied to fabric to give or enhance one or more characteristics, including but not limited to stain resistance or water resistance. "Fabric treatment" does not include fabric dye.
(k) “Feminine hygiene product” means a product used to collect menstruation and vaginal discharge, including tampons, pads, sponges, menstruation underwear, disks, applicators, and menstrual cups, whether disposable or reusable.
(l) “Fluorine-treated containers” means a fluorinated high-density polyethylene plastic container or another fluorinated container listed by the department by rule.
(m) “Food packaging and containers”’ means a container applied to or providing a means to market, protect, handle, deliver, serve, contain, or store a food or beverage. Food packaging includes: (1) a unit package, an intermediate package, and a shipping container; (2) unsealed receptacles, such as carrying cases, crates, cups, plates, bowls, pails, rigid foil and other trays, wrappers and wrapping films, bags, and tubs; and (3) an individual assembled part of a food package, such as any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks and labels.
(n) “Intentionally added PFAS” means
(1) PFAS that a manufacturer has intentionally added to a product or product component and that have a functional or technical effect in the product or product component, including PFAs components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product; or
(2) The presence of PFAS in a product or product component above thresholds established by the department in rule.
(o) “Juvenile product” means any product designed or marketed for use by infants and children under 12 years of age:
(1) Including, but not limited to a baby or toddler foam pillow, bassinet, bedside sleeper, booster seat, changing pad, child restraint system for use in motor vehicles and aircraft, co-sleeper, crib mattress, highchair, highchair pad, infant bouncer, infant carrier, infant seat, infant sleep positioner, infant swing, infant travel bed, infant walker, nap cot, nursing pad, nursing pillow, playmat, playpen, play-yard, polyurethane foam mat, pad or pillow, portable form nap mat, portable infant sleeper, portable hook-on chair, soft-sided portable crib, stroller, and toddler mattress, and
(2) Not including children’s electronic products, such as a personal computer, audio and video equipment, calculator, wireless phone, game console, handheld device incorporating a video screen, or any associated peripheral such as a mouse, keyboard, power supply unit or power cord, a medical device or an adult mattress.
(p) “Known or reasonably ascertainable” means all information in a person’s possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know.
(q) "Manufacturer" means any person, firm, association, partnership, corporation, organization, combination, or joint venture, which produces a PFAS-added product, or an importer or domestic distributor of a PFAS-added product, which is produced in a foreign country. In the case of a multi-component PFAS-added product, the manufacturer is the last manufacturer to produce or assemble the product. If the multi-component product is produced in a foreign country, the manufacturer is the importer or domestic distributor.
(r) “Medical device” has the meaning given “device” under the United States Code, title 21, section 321, subsection (h).
(s) “Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon or methylene carbon atom.
(t) “Personal protective equipment” means equipment worn to minimize exposure to hazards that cause serious workplace injuries and illnesses that may result from contact with chemical, radiological, physical, biological, electrical, mechanical, or other workplace or professional hazards.
(u) “PFAS-added consumer product” means:
(1) A product, commodity, chemical, or a product component that was manufactured after the effective date of this act;
(2) That contains PFAS intentionally added to the product, commodity, chemical, or product component; and
(3) Is a consumer product. These products include formulated PFAS-added products, and fabricated PFAS-added products.
(v) “PFAS-added product” means:
(1) A product, commodity, chemical, or a product component that was manufactured after the effective date of this act; and
(2) That contains PFAS intentionally added to the product, commodity, chemical, or product component.
(w) “Product” means an item manufactured, assembled, packaged, or otherwise prepared for sale to consumers, including its product components, sold or distributed for personal, residential, commercial, or industrial use, including for use in making other products.
(x) “Product component” means an identifiable component of a product, regardless of whether the manufacturer of the product is the manufacturer of the component.
(y) “Retailer” means a person who sells a PFAS-added product in the state through any means, including a sales outlet, a catalog, the telephone, the Internet, or any electronic means.
(z) "Supplier" has the same meaning as in RSA 149-M:33, X.
(aa) “Upholstered furniture” means an article of furniture that is designed for sitting, resting, or reclining and is wholly or partly stuffed or filled with filling material.
II.(a) The following are exempt from the requirements of this section:
(1) The resale of products manufactured prior to the ban imposed by this section.
(2) A product for which federal law governs the presence of PFAS in the product in a manner that preempts state authority.
(b) The following are exempt from the PFAS ban imposed by this section:
(1) Products made with at least 85 percent recycled content.
(2) Products manufactured prior to the ban imposed by this section.
(3) Replacement parts for products manufactured prior to the ban imposed by this section.
III.(a) The department is authorized to participate in the establishment and implementation of a multi-jurisdictional clearinghouse to assist in carrying out the requirements of this act and to help coordinate applications and reviews of the manufacturer obligations under the act. The clearinghouse may also maintain a database of all products containing PFAS, including PFAS-added products; a file on all exemptions granted by the participating jurisdictions; a file on alternative labeling plans; and a file of all the manufacturers’ reports on the effectiveness of any PFAS-added product collection systems they may institute.
(b) Public disclosure of confidential business information submitted to the department pursuant to this section shall be governed by the requirements of the state’s freedom of information act. Notwithstanding the requirements of the state’s freedom of information act, the department may provide the interjurisdictional clearinghouse with copies of such information and the interjurisdictional clearinghouse may compile or publish analyses or summaries of such information provided that the analyses or summaries do not identify any manufacturer or reveal any confidential information. Clearinghouse members and employees shall be viewed as operating under a common interest and conversations among and between members or employees shall not violate any exception to any member jurisdiction’s freedom of information act.
IV.(a) No later than July 1, 2026, no PFAS-added product banned by this act shall be offered for final sale, use, or distribution for promotional purposes in the state without prior notification in writing by the manufacturer of the product to the department in accordance with the requirements of this section. Such notification shall at a minimum include:
(1) A brief description of the product to be offered for sale, used or distributed. Descriptions shall provide the product category and the function category, as defined by rule.
(2) All relevant chemical abstract service (CAS) registry numbers or, if no CAS number is applicable, the molecular formulas and weights for all PFAS intentionally added to the product.
(3) For each product category:
(A) The amount of each PFAS or subgroups in each category;
(B) The range of PFAS in the product category by percent weight;
(C) If no analytical method exists, the amount of total fluorine present in the product category.
(4) The purpose for the which the PFAS are used in the product; and
(5) The name and address of the manufacturer, and the name, address, and phone number of a contact person for the manufacturer.
(b) A manufacturer may supply the information required in subparagraph (a) for a category of type of PFAS-added consumer product rather than for each individual product.
(c) The manufacturer shall update and revise information in the notification whenever there is a change in the information or when requested to do so by the department. The department may define and adopt specific requirements in accordance with RSA 541-A for the content and submission of the required notification.
(d) A person shall not sell, offer for sale, or distribute for sale in the state a PFAS-added product if the manufacturer has failed to notify pursuant to this section.
V.(a) Five years after the effective date of this section, no PFAS-added consumer products shall be offered for final sale, used, or used in promotional materials in the state unless that product is labeled in accordance with this section.
(b) Where a PFAS-added consumer product is a component of another product, the product containing the component shall be labeled.
(c) All labels must be clearly visible prior to sale and must inform the purchaser, using words or symbols approved by the department, that PFAS is present in the product.
(d) Labels affixed to the product shall be constructed of materials that are sufficiently durable to remain legible for the useful life of the product.
(e) Responsibility for product and package labels required under this section shall be on the manufacturer, and not on the wholesaler or retailer, unless the wholesaler or retailer agrees with the manufacturer to accept responsibility in conjunction with implementation of an alternative to the labeling requirements of this section approved under subparagraph (f).
(f) Alternative labeling requirement:
(1) A manufacturer may apply to the department for an alternative to the requirements of this section where:
(A) Strict compliance with the requirement is not feasible;
(B) The proposed alternative would be at least as effective in providing pre-sale notification of PFAS-content and in providing instructions on proper disposal;
(C) Federal law governs labeling in a manner that preempts jurisdiction authority.
(2) Applications for an alternative to the requirements of this section shall:
(A) Document the justification for the requested alternative;
(B) Describe how the alternative ensures that the purchasers or recipients are made aware of the PFAS content prior to purchase or receipt;
(C) Document the readiness of all necessary parties to implement the proposed alternative; and
(D) Describe the performance measures to be utilized by the manufacturer to demonstrate that the alternative is providing effective pre-sale notification and pre-disposal notification.
(g) The department may grant, deny, modify, or condition a request for an alternative to the requirements of this section. Before approving an alternative, the department shall consult with neighboring jurisdictions and others to ensure that its labeling requirements are consistent with those of other governments in the region. Such a waiver shall be for a period of no more than 3 years and may, upon continued eligibility under the criteria of this section and compliance with the conditions of its prior approval, be renewed at 3-year intervals.
V. Prohibitions.
(a) Product Ban. On July 1, 2028, the following PFAS-added consumer products shall be prohibited from being offered for final sale or use or distributed for promotional purposes in the state:
(1) Carpets or rugs
(2) Cosmetics
(3) Fabric treatments
(4) Feminine hygiene products
(5) Fluorine-treated containers
(6) Food packaging and containers
(7) Juvenile products
(8) Personal protective equipment
(9) Dental floss
(10) Upholstered furniture.
VI.(a) Upon request by the department, a certificate of compliance, or copies thereof, stating that a product is in compliance with the requirements of this section shall be furnished by its manufacturer or supplier to the department.
(b) Where compliance is achieved under any jurisdiction exemptions provided in paragraph II, the certificate of compliance shall state the specific basis upon with the exemption is claimed.
(c) The certificate of compliance shall be signed by an authorized official of the manufacturer or supplier. The purchaser shall retain the certificate of compliance for as long as the produce is in use. A certificate of compliance shall be kept on file by the manufacturer or supplier. A manufacturer or supplier may make the certificate of compliance available on their company website or through an authorized representative of the company such as a interjurisdictional clearinghouse.
(d) If the manufacturer or supplier of a product reformulates or creates a new product, the manufacturer or supplier shall provide an amended or new certificate of compliance for such reformulated or new product to the department.
(e) Within 30 days of receipt of a request by the department under this section, the manufacturer or supplier shall:
(1) Provide the department with the certificate of compliance attesting that the product does not contain a chemical regulated under this act; or
(2) Notify persons who sell the product containing chemicals regulated under this section that the sale of the product is prohibited, and provide the department with a copy of the notice and a list of the names and addresses of those notified.
VII. The department may adopt, under RSA 541-A, any rules necessary for the implementation, administration, and enforcement of this section.
VIII.(a) The department may enforce this section pursuant to its authority under RSA 149-M:38. The commissioner may coordinate with the commissioner of the department of health and human services in enforcing this section, if necessary.
(b) When requested by the department, a person shall furnish to the department any information that the person may have or may reasonably obtain that is relevant to show compliance with this section.
2 Department of Environmental Services; Position Established; Appropriation. There is hereby established in the department of environmental services, one full-time classified environmentalist IV position for the purposes of establishing rules, coordinating with the clearinghouse and manufacturers on technical implementation details, recommendations as to any related manufacturer fees and performing ongoing duties such as compliance assurance and enforcement as outlined in this act. The sum necessary to pay the salary, benefits, and other costs related to the position established in this section is hereby appropriated to the department of environmental services for the biennium ending June 30, 2025. This appropriation shall be in addition to any other appropriations made to the department in the biennium. The governor is authorized to draw a warrant for said sum out of any money in treasury not otherwise appropriated.
3 Appropriation; Department of Environmental Services. The sum of $250,000 for the biennium ending June 30, 2025, is hereby appropriated to the department of environmental services to fund administrative costs related to establishment and initial operation of the PFAS-added products control program established by this act, such as costs associated with data collection, lab testing and analysis, third party assistance, educational material development and distribution, and participation in the interjurisdictional clearinghouse authorized herein. The governor is authorized to draw a warrant for said sum out of any money in the treasury not otherwise appropriated.
4 Effective Date. This act shall take effect upon its passage.