Nothing Lasts Forever: New Mexico Targets “Forever Chemicals”

By Christopher P. Colyer and Sukhmani K. Singh

During the 2025 Legislative Session, the New Mexico Legislature enacted the Per- and Poly-Fluoroalkyl Substances Protection Act (HB 212) (the “PFAS Protection Act” or the “Act”), establishing one of the most comprehensive state-level frameworks for regulating per- and polyfluoroalkyl substances (PFAS) in consumer products. The Act established a phased prohibition on products containing intentionally added PFAS beginning January 1, 2027, and culminating in a near-total prohibition by January 1, 2032. It also imposed reporting requirements on manufacturers and directed the New Mexico Environmental Improvement Board (EIB) to adopt rules implementing several provisions of the Act, including a process for designating certain PFAS uses as exempt as “currently unavoidable uses.”

Following enactment of HB 212, the EIB undertook rulemaking to implement the Act. The resulting regulations supplement the statutory framework by establishing procedures and requirements for manufacturer reporting, requesting unavoidable use designations, and waivers, while also adding a significant labeling requirement for products containing intentionally added PFAS that are manufactured after January 1, 2027. As a result, businesses must consider both the requirements imposed directly by HB 212 and the additional compliance obligations established through the EIB’s implementing regulations.

Together, the Act and its implementing regulations have significant implications for manufacturers, distributors, and retailers selling consumer products in New Mexico. With the first prohibitions, reporting obligations, and labeling requirements taking effect in 2027, affected businesses should begin evaluating their product portfolios and determining whether their products are subject to the new requirements, qualify for a statutory exemption, or may be eligible for a regulatory waiver.

A Three-Phase Prohibition on Intentionally Added PFAS

The Act’s restriction on products containing intentionally added PFAS will take effect in three phases.

Phase 1, effective January 1, 2027, will prohibit manufacturers from selling, offering for sale, or distributing cookware, food packaging, dental floss, juvenile products, and firefighting foam from containing intentionally added PFAS.

Phase 2, effective January 1, 2028, will expand the prohibition to additional product categories, including carpets and rugs, cleaning products, cosmetics, fabrics, feminine hygiene products, textiles, ski wax, and upholstered furniture.

Finally, Phase 3, effective January 1, 2032, will broadly prohibit the sale and distribution of nearly all non-exempt products containing intentionally added PFAS, unless the EIB has designated the PFAS use as a “currently unavoidable use.”

The Act provides seventeen categories of exemption from PFAS prohibition. Products falling within these categories are exempt from both the prohibition and manufacturer reporting requirements, although only a handful of exempt products are also exempt from the separate labeling requirement. The Act exempts products where federal law governs PFAS presence and preempts state authority; used products; medical devices, drugs, and their packaging regulated by the FDA, including prosthetic and orthotic devices; equipment containing PFAS refrigerants listed as acceptable under EPA’s Significant New Alternatives Policy (SNAP) program; and veterinary products and their packaging, including diagnostics, veterinary medical devices, drugs, biologics, and parasiticides regulated by the FDA, USDA under the Virus-Serum-Toxin Act, or EPA under FIFRA. Products for aerial or land application registered under FIFRA are not exempt.

The exemptions also cover products used for public health or environmental/water quality testing purposes; motor vehicles or motor vehicle equipment subject to federal motor vehicle safety standards, except textile articles or refrigerants used as components; off-highway vehicles, ATVs, side-by-side vehicles, farm equipment, and personal assistive mobility devices; and watercraft, aircraft, lighter-than-air-craft, and seaplanes.

Additional exemptions apply to semiconductors, including those incorporated into electronic equipment, and materials used in semiconductor manufacturing; non-consumer electronics and non-consumer laboratory equipment not ordinarily used for personal, family, or household purposes; products used for the generation, distribution, or storage of electricity; and equipment directly used in the manufacture or development of products described in the other exemptions. 

“Currently Unavoidable Use” Designations Provide an Additional Pathway

Section 4 of the Act directs the EIB to adopt rules identifying “currently unavoidable uses” (CUU) of PFAS. A use qualifies for this designation only if it is: essential for health, safety, or the functioning of society and alternatives are not reasonably available at the time of the designation. Products that receive a “currently unavoidable use” designation from the EIB are exempt from both the prohibition on sale and the manufacturer reporting requirements. This designation provides a critical pathway for industries where PFAS-free alternatives have not yet been commercially developed or validated. Manufacturers seeking this designation should monitor the EIB’s rulemaking proceedings and be prepared to submit technical evidence demonstrating that their specific PFAS use meets both prongs of the statutory test. For an initial CUU proposal, the requester must submit the required information no later than 12 months before the applicable sales prohibition. For prohibitions effective January 1, 2027, complete CUU proposals received by NMED by October 31, 2026 will be considered approved pending review, and NMED will issue a final determination to approve or deny each proposal by March 1, 2027.

Reporting Requirements and Waivers

Beginning January 1, 2027, manufacturers of products that contain intentionally added PFAS and that are manufactured after that date must report detailed information about PFAS content to NMED. The reporting obligation includes a description of the product (including its Universal Product Code, Stock Keeping Unit, and other numeric code), the purpose for which PFAS is used in the product, the name and Chemical Abstracts Service Registry Number (CAS RN) identification of each PFAS substance in the product, the amount of each PFAS substance in the product, reported within established concentration ranges; and any additional information required by Board rules.

Section 5 of the Act grants NMED discretionary authority to waive manufacturer reporting obligations under certain circumstances. NMED has also been authorized to coordinate information collection with other states and political subdivisions and to accept information submitted through a shared system. NMED may waive all or part of the reporting information required if it determines that substantially equivalent information is publicly available. A waiver may be granted to a single manufacturer or a group of manufacturers for multiple products or an entire product category. NMED may enter into, modify, or dissolve an agreement with one or more states or political subdivisions to collect information and may accept information submitted to a shared system as satisfying New Mexico’s reporting requirements.

EIB’s rulemaking added a significant labeling requirement separate from the Act’s prohibition and reporting provisions. Products containing intentionally added PFAS that are manufactured after January 1, 2027, generally must bear the required label before sale. The label must be an outline of an Erlenmeyer flasks with the words “PFAS” inside the flask, and it must be clearly visible and legible before sale, displayed conspicuously, and use text no smaller than the largest font used for other consumer information on the product.

A complex durable good (a good with at least 100 manufactured components, a useful lifespan of at least five years, and that is not consumed after a single use) may use alternative labeling. For such a good, the required Erlenmeyer flask must appear on the consumer-facing product specification sheet and in the operation and maintenance manual. A manufacturer may comply by labeling all units in accordance with corresponding requirements adopted by another state, but must provide NMED with a copy of the label and a narrative explaining how the label satisfies the New Mexico requirements.

The following products are exempt from the labeling requirements: used products, products with labeling preempted under FIFRA or with existing labeling required by 50 CFR 156.10, veterinary products regulated by the FDA, USDA, or EPA, and medical devices and drugs regulated by the FDA. NMED may waive the labeling requirement only if both of the following conditions are satisfied: the product is exempt from the reporting and prohibition requirements, and none of the product’s material containing intentionally added PFAS will ever come into direct contact with a consumer while the product is used as intended during its useful life. Label waiver requests are due October 31, 2026. Complete requests received by that date will be considered approved pending review, and NMED will issue a final determination to approve or deny each request by June 1, 2027.

Looking Ahead

The PFAS Protection Act represents a significant expansion of New Mexico’s regulatory framework governing PFAS in consumer products. With the first phase of prohibitions taking effect on January 1, 2027, manufacturers and distributors should begin compliance planning immediately. Companies that proactively assess their product portfolios, engage with the rulemaking process, and leverage available waiver mechanisms will be best positioned to manage the transition.