On August 2nd, Governor Chris Sununu of New Hampshire signed into law House Bill 1649, which bans the sale of certain products with intentionally added PFAS effective January 1, 2027. Per- and polyfluoroalkyl substances (PFAS) are a class of widely used chemicals that are pervasive and persistent in the environment. Commonly used in consumer products for their stain- and water-resistant properties, PFAS are widely detected in drinking water across the United States. The restrictions do not cover unintentional contamination which may occur during manufacturing or shipping. The products affected include:
- Carpets or rugs
- Cosmetics
- Feminine hygiene products
- Food packaging and containers
- Textile treatments
- Juvenile products
Products not subject to the law include electronics, wireless phones, gaming consoles, hand-held devices with a video screen, computer peripherals, medical devices, and adult-sized mattresses.
Other products exempt from the legislation include:
- Resale of products or replacement parts manufactured prior to 2027;
- Products where federal law preempts state law;
- Products regulated as drugs or medical devices by the FDA;
- Products or substances approved as substitutes under the Significant New Alternatives; and
- Policy program of the US EPA. This includes products that have 85% recycled content.
The Department of Environmental Services is responsible for the implementation, administration, and enforcement of the restrictions. Upon request by the Department of Environmental Services, manufacturers or suppliers of products must provide certificates of compliance stating that a product does not contain intentionally added PFAS. If the manufacturer or supplier of a product reformulates or creates a new product, they must provide an amended or new certificate of compliance for such reformulated or new product to the state.
State Clearinghouse
The legislation establishes and implements a multi-jurisdictional clearinghouse in the Department of Environmental Services to assist in carrying out the requirements of the law and coordinating applications and reviews of the manufacturer obligations under the section.
Strict Liability Implications
The law also further amends existing laws by allowing the New Hampshire Attorney General to bring a civil action against facilities for certain PFAS contamination. Facilities may be held strictly liable “for containment, cleanup, restoration, or other remediation related to the release or threatened release of hazardous waste or hazardous material in accordance with applicable law and departmental rules”, and potentially for cleanup costs or legal costs incurred by the state. The release of PFAS must have resulted in a total combined concentration in groundwater or surface water at or above 10,000 ng/l (parts per trillion) PFAS for which ambient groundwater quality standards have been established pursuant to the state or federal regulatory authorities. Public water systems and state water treatment facilities are exempt from this new amendment. The Governor vetoed House Bill 1415, which would have held PFAS facilities that release such chemicals into the groundwater or surface water liable when total combined concentrations were 100 parts per trillion or greater.
Reference: Sununu signs one bill targeting ‘forever chemicals’ but vetoes another • New Hampshire Bulletin
