HOUSE BILL 212
57th legislature - STATE OF NEW MEXICO - first session, 2025
INTRODUCED BY
Joanne J. Ferrary and Debra M. Sariñana and Kathleen Cates
AN ACT
RELATING TO THE ENVIRONMENT; ENACTING THE PER- AND POLY-FLUOROALKYL SUBSTANCES PROTECTION ACT; PROHIBITING CERTAIN PRODUCTS THAT CONTAIN AN INTENTIONALLY ADDED PER- OR POLY-FLUOROALKYL SUBSTANCE; AUTHORIZING THE ENVIRONMENTAL IMPROVEMENT BOARD TO ADOPT RULES PROHIBITING CERTAIN PRODUCTS THAT CONTAIN AN INTENTIONALLY ADDED PER- OR POLY-FLUOROALKYL SUBSTANCE; REQUIRING DISCLOSURE OF INFORMATION AND TESTING OF PRODUCTS SOLD, OFFERED FOR SALE OR DISTRIBUTED FOR SALE IN THIS STATE THAT CONTAIN AN INTENTIONALLY ADDED PER- OR POLY-FLUOROALKYL SUBSTANCE; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Per- and Poly-Fluoroalkyl Substances Protection Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Per- and Poly-Fluoroalkyl Substances Protection Act:
A. "adult mattress" means a mattress other than a crib or toddler mattress;
B. "board" means the environmental improvement board;
C. "carpet or rug" means a fabric marketed or intended for use as a floor covering;
D. "chemical" means a substance with a distinct molecular composition or a group of structurally related substances and includes the breakdown of products of the substance or substances that form through decomposition, degradation or metabolism;
E. "cleaning product" means a finished product used for general cleaning purposes, including:
(1) a polish or floor maintenance product;
(2) an air care product labeled for the intended use of enhancing or conditioning the indoor environment by eliminating unpleasant odors or freshening the air; and
(3) an automotive maintenance product labeled for the intended use of maintaining the appearance of a motor vehicle, but does not include automotive paint or paint repair products;
F. "consumer product" means a tangible personal property that is distributed in commerce and normally used for personal, family or household use, including product categories that are normally used in households but designed for or sold to businesses, such as commercial carpet or floor waxes;
G. "cookware" means durable houseware items used to prepare, dispense or store food, foodstuffs or beverages;
H. "cosmetic" means a product or product component, other than soap, intended to be applied to the human body for cleansing, beautifying or promoting attractiveness;
I. "currently unavoidable use" means a use of a per- or poly-fluoroalkyl substance that the board has determined by rule to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available;
J. "department" means the department of environment;
K. "fabric treatment" means a substance applied to fabric for stain, grease or water resistance or flame retardance;
L. "feminine hygiene product" means a disposable or reusable product to collect menstruation and vaginal discharge, including tampons, pads, sponges, menstruation underwear, discs, applicators and menstruation cups;
M. "firefighting foam" means a class B firefighting foam intended for use to control or extinguish a fire;
N. "food packaging" means a container, unit package, intermediate package or shipping container applied to or providing a means to market, protect, handle, deliver, serve, contain or store a food or beverage, including an individual assembled part of a food package;
O. "intentionally added" means a per- or poly-fluoroalkyl substance deliberately added or used during the manufacture of a product where the continued presence, at any level or concentration, of the per- or poly-fluoroalkyl substance is desired or expected in the final product or one of the product's components;
P. "juvenile product" means a product designed or marketed for use by children under twelve years old, including children's car seats, clothing and toys, but does not include an electronic product;
Q. "manufacturer" means:
(1) a person, a firm, an association, a partnership, a corporation, an organization, a combination or a joint venture that creates, produces or assembles a product or whose brand name is affixed to a product; or
(2) in the case of a product imported into the United States, an importer or first domestic distributor of the product; provided that the person that created, produced or assembled the product or whose brand name is affixed to the product does not have an office or employees in the United States;
R. "medical device" means an instrument, apparatus, implement, machine, implant, in vitro reagent or other similar or related device, including any component or accessory, that is:
(1) recognized in an official compendium;
(2) intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment or prevention of disease, in a human or animal; or
(3) intended to affect the structure or function of the body of a human or animal and that does not achieve its principal intended purposes through chemical action within or on the body of a human or animal and that is not dependent on being metabolized for achievement of its principal intended purpose;
S. "per- or poly-fluoroalkyl substance" means a substance in a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom;
T. "product" means an item created, produced, assembled, packaged or otherwise prepared for sale to a consumer, including a product component sold or distributed for personal, residential, commercial or industrial use or for use in making a product;
U. "ski wax" means a lubricant applied to the bottom of a snow runner, including a ski or snowboard, to improve grip or glide properties and includes associated tuning products;
V. "textile" means an item made in whole or in part from a natural or synthetic fiber, yarn or fabric, including leather, cotton, silk, jute, hemp, wool, viscose, nylon or polyester;
W. "textile furnishings" means a textile product made in whole or part from a natural or synthetic fiber, yarn or fabric that is used as furniture or a decorative accessory; and
X. "upholstered furniture" means furniture that is wholly or partially stuffed with a filling material.
SECTION 3. [NEW MATERIAL] PROHIBITION ON PRODUCTS CONTAINING PER- OR POLY-FLUOROALKYL SUBSTANCES--EXEMPTIONS.--
A. Subsections B through G of this section do not apply to:
(1) a product for which federal law governs the presence of a per- or poly-fluoroalkyl substance in the product in a manner that preempts state authority;
(2) used products offered for sale or resale;
(3) medical devices or drugs that are regulated by the United States food and drug administration; or
(4) any consumer product that contains intentionally added per- or poly-fluoroalkyl substances that are approved for sale by the board pursuant to the following:
(a) the board may adopt rules to create, enforce or terminate a per- and poly-fluoroalkyl substance stewardship program. In establishing a stewardship program, the board may consider statewide collection systems that provide access to the public for the drop-off of consumer products containing an intentionally added per- or poly-fluoroalkyl substance at no cost to the consumer; and
(b) if the board adopts rules to create a per- and poly-fluoroalkyl substance stewardship program, the board shall adopt rules necessary for the implementation and operation of the program, including rules to establish what criteria manufacturers, other entities or organizations must meet to qualify for the program.
B. Beginning January 1, 2027, the state or a person on behalf of the state shall not purchase a product that contains an intentionally added per- or poly-fluoroalkyl substance.
C. Beginning January 1, 2027, a manufacturer shall not sell, offer for sale or distribute for sale in this state, directly or indirectly or through intermediaries, the following products if that product contains an intentionally added per- or poly-fluoroalkyl substance:
(1) cookware;
(2) food packaging;
(3) dental floss; and
(4) juvenile products.
D. Beginning January 1, 2028, a manufacturer shall not sell, offer for sale or distribute for sale in this state, directly or indirectly or through intermediaries, the following products if that product contains an intentionally added per- or poly-fluoroalkyl substance:
(1) carpets or rugs;
(2) cleaning products;
(3) cosmetics;
(4) fabric treatments;
(5) feminine hygiene products;
(6) textiles;
(7) textile furnishings;
(8) ski wax; and
(9) upholstered furniture.
E. The board may adopt rules to prohibit consumer products that contain an intentionally added per- or poly-fluoroalkyl substance by category or use that a manufacturer may not sell, offer for sale or distribute for sale in this state, directly or indirectly or through intermediaries, upon a finding that a prohibition on the product is necessary to protect human health or the environment. The board shall set effective dates for a prohibition established by rule pursuant to this subsection; provided that the board shall not set an effective date for the prohibition of a product less than six months after the adoption of the final rule to prohibit the product or earlier than January 1, 2027. The board shall prioritize the prohibition of consumer products containing an intentionally added per- or poly-fluoroalkyl substance that are most likely to harm human health or contaminate the environment.
F. Beginning January 1, 2028, a manufacturer shall not sell, offer for sale or distribute for sale in this state, directly or indirectly or through intermediaries, a product containing an intentionally added per- or poly-fluoroalkyl substance, unless the board has adopted a rule providing that the use of the per- or poly-fluoroalkyl substance in that product is a currently unavoidable use. The board may adopt rules to designate that the use of a per- or poly-fluoroalkyl substance in a certain product is a currently unavoidable use; provided that the use of a per- or poly-fluoroalkyl substance in a product listed in Subsection C or D of this section is prohibited and shall not be designated as a currently unavoidable use.
G. The department shall consult with the New Mexico department of agriculture before petitioning the board pursuant to Subsection E or F of this section with respect to a pesticide, fertilizer, agricultural liming material or plant or soil amendment that contains an intentionally added per- or poly-fluoroalkyl substance.
SECTION 4. [NEW MATERIAL] RULES.--
A. The board shall adopt rules to:
(1) create a series of ranges for the amount of a per- or poly-fluoroalkyl substance in a product that contains an intentionally added per- or poly-fluoroalkyl substance for reporting purposes; and
(2) identify currently unavoidable uses of a per- or poly-fluoroalkyl substance that are essential for health, safety or the functioning of society and for which alternatives are not reasonably available.
B. The board may adopt other rules the board deems necessary to carry out the provisions of the Per- and Poly-Fluoroalkyl Substances Protection Act.
SECTION 5. [NEW MATERIAL] RULES--INFORMATION REQUIRED--EXTENSIONS--WAIVERS.--
A. The board shall adopt rules that enumerate the information required of a manufacturer and necessary for the department to implement the Per- and Poly-Fluoroalkyl Substances Protection Act. The information required shall include:
(1) a brief description of the product, including a universal product code, stock keeping unit or other numeric code assigned to the product;
(2) the purpose for which a per- or poly-fluoroalkyl substance is used in the product;
(3) the amount of each per- or poly-fluoroalkyl substance in the product, identified by its chemical abstracts service registry number and reported as an exact quantity determined using commercially available analytical methods or as falling within a range approved for reporting purposes by the department;
(4) the name and address of the manufacturer and the name, address and phone number of a contact person for the manufacturer; and
(5) any additional information requested by the department as necessary.
B. On or before January 1, 2027, a manufacturer of a product sold, offered for sale or distributed for sale in the state, directly or indirectly or through intermediaries, that contains an intentionally added per- or poly-fluoroalkyl substance shall submit to the department the information required by Subsection A of this section or a rule adopted pursuant to that subsection.
C. Prior to January 1, 2028, a manufacturer shall not sell, offer for sale or distribute for sale in this state, directly or indirectly or through intermediaries, a product if testing requested by the department demonstrates that the product contains an intentionally added per- or poly-fluoroalkyl substance and the manufacturer has failed to provide the department the information required by Subsection A of this section or a rule adopted pursuant to that subsection.
D. Prior to January 1, 2028, a manufacturer shall not sell, offer for sale or distribute for sale in this state, directly or indirectly or through intermediaries, a product that contains an intentionally added per- or poly-fluoroalkyl substance unless the manufacturer has submitted to the department the information required by Subsection A of this section or a rule adopted pursuant to that subsection. A product reported pursuant to this subsection containing an intentionally added per- or poly-fluoroalkyl substance may be prohibited from sale pursuant to the Per- and Poly-Fluoroalkyl Substances Protection Act and to rules adopted pursuant to that act.
E. A manufacturer shall submit a revision of the information provided on a product within thirty days of a significant change to the information the manufacturer previously submitted or upon the request of the department.
F. Upon written approval from the department, a manufacturer may provide the information required by this section to the department for a category or type of product or product component.
G. The department may waive the obligation of a manufacturer to submit all or part of the information required by this section if the department determines that substantially equivalent information is already publicly available. The department may grant a waiver to a manufacturer or a group of manufacturers for multiple products or a product category.
H. The department may enter into an agreement with one or more other states or political subdivisions of a state to collect information and may accept information to a shared system as meeting the information requirements of this section.
I. The department may extend the deadline for a manufacturer to submit the information required by this section upon a determination by the department that the circumstances merit an extension of time.
J. Upon receiving information from a manufacturer, the department shall notify the manufacturer that adequate information has been received or that additional information is required. A manufacturer shall submit to the department any additional information requested by the department within thirty days of the request.
SECTION 6. [NEW MATERIAL] TESTING REQUIRED--CERTIFICATE OF COMPLIANCE--EXEMPTION.--
A. If the department has reason to believe that a product containing an intentionally added per- or poly-fluoroalkyl substance is being sold, offered for sale or distributed for sale in the state, directly or indirectly or through intermediaries, the department may direct the manufacturer of the product to, within thirty days, provide the department with testing results that demonstrate the amount of each per- or poly-fluoroalkyl substance, identified by its chemical abstracts service registry number, in the product, reported as an exact quantity determined using commercially available analytical methods or as falling within a range approved for reporting purposes by the department.
B. If testing demonstrates that the product does not contain an intentionally added per- or poly-fluoroalkyl substance, the manufacturer shall provide the department with a certificate of compliance attesting that the product does not contain an intentionally added per- or poly-fluoroalkyl substance, the testing results and any other relevant information.
C. If testing demonstrates that the product contains an intentionally added per- or poly-fluoroalkyl substance, the manufacturer shall:
(1) provide to the department, within thirty days, the information required for a product pursuant to the Per- and Poly-Fluoroalkyl Substances Protection Act or rules adopted pursuant to that act; and
(2) notify a person that sells, offers for sale or distributes the product for sale in this state that the product is prohibited in this state and provide the department with a list of the names and addresses of the people notified.
D. The department may notify a person that sells, offers for sale or distributes for sale in this state a product prohibited by the Per- and Poly-Fluoroalkyl Substances Protection Act or rules adopted pursuant to that act that the product is prohibited in this state.
E. The provisions of this section do not apply to a medical device or drug that is regulated by the United States food and drug administration.
SECTION 7. [NEW MATERIAL] ENFORCEMENT--CIVIL PENALTY.--
A. A person that violates a provision of the Per- and Poly-Fluoroalkyl Substances Protection Act or a rule adopted pursuant to that act shall be assessed a civil penalty not to exceed fifteen thousand dollars ($15,000), and for each day during which any portion of a violation occurs, the department may assess the person administrative costs the department incurs for enforcement of the Per- and Poly- Fluoroalkyl Substances Protection Act or a rule adopted pursuant to that act.
B. A person that fails to comply with an administrative order issued pursuant to the Per- and Poly- Fluoroalkyl Substances Protection Act or a rule adopted pursuant to that act may be assessed, pursuant to a court order, a civil penalty of not more than twenty-five thousand dollars ($25,000) for each day of noncompliance.
C. Penalties imposed pursuant to this section are independent of any damages, remediation or cleanup costs, environmental restoration costs or other monetary or nonmonetary remedies that may be imposed by statutory, decisional or regulatory laws.
D. In an action to enforce the provisions of the Per- and Poly-Fluoroalkyl Substances Protection Act or an ordinance, rule or order adopted, imposed or issued pursuant to that act:
(1) the department shall be represented by the attorney general or the department;
(2) a municipality shall be represented by the attorney general or the municipality; and
(3) a county shall be represented by the district attorney within whose district the county lies.
E. A person may commence a civil action on that person's own behalf against:
(1) a person or governmental instrumentality or agency alleged to be in violation of a provision of the Per- and Poly-Fluoroalkyl Substances Protection Act or a rule, standard, limitation, order or condition established pursuant to that act; or
(2) the appropriate governmental agency or official where there is an alleged failure to perform a nondiscretionary act or duty.
F. Penalties collected pursuant to this section shall be deposited in the current school fund.
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