The amended rule adds to the growing patchwork of state-level PFAS laws and to compliance burdens.

By Julia A. Hatcher, Tom Lee, and Hunter J. Kendrick

Key Points

  • Any product in excess of the 50 ppm total fluorine threshold is presumed to contain “intentionally added” PFAS and subject to the rule unless this presumption is rebutted with “credible evidence.”
  • Washington State’s adoption of a total fluorine threshold breaks from other states that previously adopted total organic fluorine thresholds, effectively requiring industry to use multiple tests and adding to compliance burdens.
  • For certain products, the rule may operate the same as an outright ban on products with a certain level of PFAS because supply chain complexities may make it infeasible to rebut the intentionally added PFAS presumption with credible evidence. 
  • Without federal PFAS legislation, state laws and regulations are proliferating with varied approaches and levels of nuance.

Washington State, through its Department of Ecology, recently amended its per- and polyfluoroalkyl substances (PFAS) rule. The amendments target new product categories and products in these categories with “intentionally added PFAS.” For certain categories, the rule requires submission of a product report starting in January 2027. For other categories, the rule prohibits product manufacture, sale, and distribution, with some exceptions, beginning January 1, 2027.

Although the rule’s “intentionally added” PFAS definition was not modified, the amendments augment that definition by adding a 50 parts per million (ppm) total fluorine (TF) threshold and mandating that any products testing above this threshold are presumed to contain intentionally added PFAS and are subject to the rule unless companies submit a statement that PFAS were not intentionally added, along with supporting credible evidence.

Washington’s adoption of this 50 ppm TF threshold is an apparent acknowledgement of the difficulty in applying the intentionally added PFAS definition to the complex global supply chains behind the newly targeted product categories. It also recognizes the reality that PFAS can be present in such products in small amounts for various reasons, ranging from their intentional use as a processing aid somewhere upstream in a supply chain to their presence as a result of trace environmental contamination.

However, the TF threshold’s practical effect is to impose a testing requirement on industry and to apply the rule to products where it may prove challenging to rebut the intentionally added PFAS presumption with credible evidence due to supply chain complexities. Moreover, as Washington acknowledges, its adoption of a TF — as opposed to a total organic fluorine (TOF) — threshold will sweep in products that do not contain PFAS at all, but instead contain inorganic fluorine (e.g., fluorides and cryolite), thereby subjecting such products to the rule unless and until companies submit a statement and credible evidence to rebut the presumption.

Overview of the Rule

Washington amended its Cycle 1.5 PFAS Rule on November 20, 2025. The rule was promulgated under the Safer Products for Washington Act, a state law that directs the Department of Ecology and the Department of Health to identify products that contain significant sources of high-priority chemicals and to reduce their prevalence. Under Washington’s regime, products with high-priority chemicals can be banned if safer alternative chemicals are available and feasible for substitution. Where no such safer alternatives exist, a ban is not permissible, but reporting can still be required. The latter requirement makes Washington the latest in a growing list of jurisdictions to adopt some version of PFAS reporting requirements. (For information on the EPA’s proposed exemptions to the Toxic Substances Control Act PFAS reporting rule, see this Latham blog post.)

The rule adds 12 new product categories and requires reporting for any product with intentionally added PFAS in the following nine of those product categories:

  • Apparel intended for extreme and extended use
  • Footwear
  • Recreational and travel gear
  • Automotive waxes
  • Cookware and kitchen supplies (excluding major appliances)
  • Personal protective equipment used for firefighting
  • Floor waxes and polishes
  • Hard surface sealants
  • Ski waxes

The first reports are due on January 31, 2027, and annually thereafter by January 31.

The rule bans the manufacture, sale, and distribution in Washington of products with intentionally added PFAS for the following three product categories:

  • Cleaning products
  • Apparel and accessories made from leather, natural textiles, synthetic textiles, or technical textiles
  • Automotive washes

The ban will take effect on January 1, 2027, and will not apply to any products manufactured before that date.

The rule’s “intentionally added” PFAS definition was not amended. However, the rule added a 50 ppm TF threshold, and it deems products that test above this threshold presumptively to contain intentionally added PFAS. Such products are subject either to reporting requirements or a ban unless a statement is submitted that PFAS were not intentionally added to the product and credible evidence is provided to support that statement.

What the TF Threshold Means for Companies

Washington concluded that the “[TF] threshold will capture the intentional uses of PFAS[.]”1 To determine compliance with the rule, the state warned that it “may conduct product testing on regulated products to look for the amount of total fluorine.”2 The rule does not require a specific TF analytical method, and guidance published contemporaneously to the rule does not recommend an analytical method.3 Washington has indicated that it aims to afford regulated entities flexibility; however, for many companies, the first question will be how best to determine the TF level in their products.

Washington’s decision to opt for a threshold on TF, instead of TOF, sets it apart from other states. California, for example, has adopted laws for juvenile products4 and food packaging5 that ban products containing more than 100 ppm TOF. It also adopted a law that prohibits new textile articles containing “regulated PFAS,” defined as both (1) intentionally added PFAS, and (2) more than 100 ppm TOF, which ratchets down to 50 ppm TOF starting in January 2027.6 In addition, California has enacted a law that prohibits intentionally added PFAS in menstrual products and directs the state’s Department of Toxic Substances Control to promulgate an as-yet-undetermined TOF ban level for those products by 2027.7

Washington explained that it chose TF because “[TOF] testing doesn’t accurately capture all organic fluorine; organic fluorine from polymers is often underestimated in total organic fluorine testing. Using [TF] testing ensures we don’t miss noncompliant products.”8 Of course, one drawback to Washington’s approach is that it will sweep into the rule’s ambit products that do not actually contain PFAS but instead contain inorganic fluorine. Washington concedes this point: “[The state’s TF testing] may capture products that have inorganic fluorine present from pigments or plastic manufacturing processes. In these cases, the manufacturer may rebut our presumption by submitting information … such as the use of any fluorinated ingredients or inorganic fluorine test results.”9

Washington’s adoption of a TF threshold aims to address the challenges posed in applying the intentionally added PFAS definition to products with complex, multifaceted supply chains. The rule’s definition captures not only products where PFAS “serves an intended function in the final product” but also products where PFAS serves an intended function “in the manufacturing of the product or part of the product.”10 This definition would seem broad enough to encompass products where a PFAS was used for any purpose at any point in the manufacturing of the product or any component of the product, including as a processing aid. Making this intentionally added determination, however, can pose serious challenges for product manufacturers, sellers, and distributors.

The 50 ppm TF threshold addresses this challenge by providing a benchmark where the presence of intentionally added PFAS will be presumed, though companies may rebut that presumption. This opportunity for rebuttal distinguishes Washington from the other state laws discussed above, which apply a TOF threshold as an outright ban on products exceeding that threshold.

Nevertheless, for some products, the 50 ppm TF threshold may lead to the same result as an outright ban because, for products sourced through complex supply chains, it may prove infeasible to provide the not intentionally added PFAS statement and credible evidence supporting it to rebut this presumption. In other words, it may not be possible for companies to explain why one or more PFAS are present and to confirm with a statement backed up by credible evidence that such presence was not tied at any point in the complex supply chain to intentional PFAS use.

Proliferating State PFAS Laws

In the absence of federal PFAS legislation or regulation, state laws and regulations continue to proliferate. In contrast to the sweeping bans that were initially enacted, however, some states are starting to recognize the need for increasingly nuanced approaches.

Because of their myriad uses, PFAS may be present in a wide array of products including automotive parts, carpets and rugs, food packaging, medical devices, paints and coatings, solar panels, and many other products.11 As public concern over potential harmful effects has increased, the number of PFAS laws enacted at the state level has rapidly risen.

The scope and content of these state laws vary widely. Some states require the reporting of products with intentionally added PFAS. Others require manufacturers of certain categories of products to provide labels and website disclosures indicating the presence of PFAS. Many states have prohibited the continued use of intentionally added PFAS in certain product categories, and many of those laws have already gone into effect. Finally, some states have prohibited intentionally added PFAS in all consumer products starting in 2032, unless a particular PFAS use is granted an exemption from the ban.12

As policymakers at all levels of government become more familiar and conversant with PFAS issues and the science behind the chemistry, some states are increasingly adopting more nuanced, and sometimes pragmatic, approaches to regulating PFAS. Two developments stand out.

1. Focus on a more limited subset of PFAS

Some states appear increasingly willing to recognize that, from a pure chemistry standpoint, PFAS are a broad family of thousands of compounds, and not all PFAS pose the same human health and environmental concerns. As a result, some recent laws and regulations prohibiting or restricting PFAS have shifted to focus on a more limited subset of PFAS.

In April 2025, New Mexico became the first state to enact a PFAS ban that exempts fluoropolymers. Fluoropolymers are a subset of PFAS that, at present, are found in a wide array of commercial and industrial products, including aerospace and automotive applications; cell phones; implantable medical devices; non-stick cookware; renewable energy infrastructure, such as solar photovoltaic cells and wind turbines; and waterproof clothing.13

New Mexico’s decision to exempt fluoropolymers is a recent development in the broader discussion about whether fluoropolymers should be regulated differently than other PFAS. Supporters of fluoropolymer exemptions have pointed to their economic importance and asserted that due to their distinct properties as compared with non-polymeric PFAS — such as their immobility and insolubility in water — fluoropolymers are unlikely to pose significant health risks.14

While New Mexico was the first to move, fluoropolymer exemption legislation has been introduced in other states. For example, Rhode Island has a pending bill that would exempt fluoropolymers approved by the federal Food and Drug Administration for food contact applications.15 A pending bill in California would not directly provide for an exemption but would have the legislature declare its intent to “phase out the sale of consumer products with avoidable PFAS use … while continuing to allow the distribution and use of products and product categories that contain fluoropolymers,”16 thereby laying the groundwork for a future exemption.

Whether these laws will be enacted remains uncertain, and regulators in some states have been clear that they do not intend to offer any general fluoropolymer exemption.17 Meanwhile, other states are taking active steps to evaluate fluoropolymers separately from other PFAS, which could be a first step toward an eventual exemption. For example, in August 2025, Illinois amended its PFAS Reduction Act to require the Illinois Environmental Protection Agency to submit a report to the state legislature in 2027 assessing, among other things, fluoropolymers’ potential health and environmental impacts, their potential critical uses in consumer products, and the feasibility of developing a program to review them for use in consumer products.18

2. More waivers and statutory exemptions

A number of states are moving to provide waivers or statutory exemptions for certain critical PFAS uses where industry has argued that viable alternative chemistry substitutions do not currently exist. At least seven states have proposed or adopted carveouts that allow for the continued use of PFAS in critical products, such as consumer electronics, semiconductors, and FDA-approved drugs and medical devices.

Some states have also adopted “currently unavoidable use” (CUU) programs that allow for longer phaseouts of some intentionally added PFAS uses that those states deem to be essential for health, safety, or the functioning of society. Maine, Minnesota, and New Mexico have all taken steps to adopt formal CUU rules and petition processes. While these CUU programs do not provide a permanent solution for manufacturers, they are another sign that state policymakers increasingly recognize the practical limits of PFAS substitution in certain supply chains.

Conclusion

In the final analysis, Washington’s TF threshold adds to the growing patchwork of state PFAS laws and to compliance burdens. Companies will need to incorporate TF testing into their product testing protocols, which may already include the TOF testing required under other state PFAS laws and/or the more refined PFAS test methods being developed by the EPA, such as the absorbable organic fluorine (AOF) method and methods to speciate for certain specific PFAS.19 Companies that standardize their screening, tighten supplier controls, and monitor state-by-state developments will be best positioned to leverage emerging regulatory relief valves while staying ahead of a seemingly ever-expanding compliance landscape.

Latham & Watkins will continue to monitor developments in this area.