Court Enjoins New Mexico’s PFAS Label

By Patrick J. Paul, Christopher P. Colyer, John Habib, and Sukhmani K. Singh

A New Mexico federal court has preliminarily enjoined the state’s first-in-the-nation requirement that any product with intentionally added PFAS carry a label — an Erlenmeyer flask with the word “PFAS” inside. Judge Margaret Strickland found the industry plaintiffs likely to succeed on their First Amendment challenge and blocked enforcement of the labeling mandate (N.M. Code R. § 20.13.2.13) while the case proceeds.

Under Zauderer, compelled commercial disclosures survive relaxed scrutiny only if they are (1) purely factual, (2) uncontroversial, and (3) reasonably fit to a legitimate state interest. New Mexico prevailed on the first two elements. A label stating that a product contains PFAS — defined as a fluorinated organic chemical with at least one fully fluorinated carbon atom — is factually accurate, the court held, even though no single PFAS definition commands scientific consensus and even though a flask pictograph carries a negative connotation. A statement does not become opinion merely because it discomfits the speaker or invites a negative inference. As to controversy, the court was equally direct, noting that because the label says nothing about whether PFAS are harmful, it does not force manufacturers into scientific debate over PFAS toxicity.

New Mexico failed on fit and its own characterization. To avoid the controversy problem, New Mexico repeatedly disavowed that the label was a “warning,” insisting it was a neutral “consumer awareness” label conveying no hazard information, no disposal guidance, and no instruction on avoiding exposure. The “lack of characterization,” the state argued, was “a feature, not a bug.” That framing proved fatal. Distinguishing NEMA (Vermont’s mercury label, which told consumers how to dispose of the product) and AMI (country-of-origin labeling, backed by long history and food-safety context), the court found no rational connection between a content-only disclosure and the state’s asserted interests in consumer and environmental health. A label that conveys no actionable information cannot be “inextricably intertwined” with reducing PFAS harm. Rather, the court noted, it serves only consumer curiosity, which International Dairy and AMI confirm is not a sufficient interest to compel speech. The court also noted the state’s attempt to have it both ways — a “Schrödinger” label that is at once benign awareness and, per the state’s own expert and New Mexico Environment Department’s (NMED) website (“Look for warnings about PFAS”), a functional warning.

Notably, the court’s ruling amounted to a grant of a preliminary injunction request and an appeal seems imminent. For now, in New Mexico, a rule that singles out one substance solely to inform consumers of its presence, without tying the disclosure to a concrete health or environmental purpose, may not survive Tenth Circuit scrutiny.

However, a warning label may still survive. The court expressly declined to rule on a hypothetical label conveying hazard or disposal information, thereby leaving New Mexico a narrower, defensible path if it connects the disclosure to the regulatory goal.

Furthermore, the injunction reaches only the labeling rule. New Mexico’s PFAS sales bans (phasing in through 2032) and reporting requirements remain enforceable, and compliance planning should continue accordingly.