N.H. Rev. Stat. § 149-M:64 — NH Code / Title X / Chapter 149-M / Section 64
149-M:64 Consumer Products; Per and Polyfluoroalkyl Substance Use Restricted.
Status: in_force

I. In this section: (a) "Adult mattress" means a mattress other than a crib mattress or toddler mattress. (b) "Carpet or rug" means a fabric product marketed or intended for use as a floor covering in households or businesses. (c) "Chemical" means a substance with a distinct molecular composition or a group of structurally related substances and includes the breakdown products of the substance or substances that form through decomposition, degradation, or metabolism. (d) "Consumer product" means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes. "Consumer products" includes product categories that are normally used by households, but designed for or sold to businesses, such as commercial carpets or commercial floor waxes. (e) "Cosmetic" means an article for retail sale or professional use intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance. (f) "Department" means the department of environmental services. (g) "Distributor" has the same meaning as RSA 149-M:33, II. (h) "Feminine hygiene product" means a product used to collect menstruation and vaginal discharge, including tampons, pads, sponges, menstruation underwear, disks, applicators, and menstrual cups, whether disposable or reusable. (i) "Food packaging and containers" means a container applied to or providing a means to market, protect, handle, deliver, serve, contain, or store a food or beverage. Food packaging includes: (1) A unit package, an intermediate package, and a shipping container; (2) Unsealed receptacles, such as carrying cases, crates, cups, plates, bowls, pails, rigid foil and other trays, wrappers and wrapping films, bags, and tubs; and (3) An individual assembled part of a food package, such as any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks, and labels. (j) "Intentionally added PFAS" means PFAS that a manufacturer has intentionally added to a product or product component and that have a functional or technical effect in the product or product component, including PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product. (k) "Juvenile product" means any product designed or marketed for use by infants and children under 12 years of age: (1) Including, but not limited to a baby or toddler foam pillow, bassinet, bedside sleeper, booster seat, changing pad, child restraint system for use in motor vehicles and aircraft, co-sleeper, crib mattress, highchair, highchair pad, infant bouncer, infant carrier, infant seat, infant sleep positioner, infant swing, infant travel bed, infant walker, nap cot, nursing pad, nursing pillow, playmat, playpen, play-yard, polyurethane foam mat, pad, or pillow, portable foam nap mat, portable infant sleeper, portable hook-on chair, soft-sided portable crib, stroller, and toddler mattress, and (2) Not including children's electronic products, such as a personal computer, audio and video equipment, calculator, wireless phone, game console, hand-held device incorporating a video screen, or any associated peripheral such as a mouse, keyboard, power supply unit or power cord, a medical device, or an adult mattress. (l) "Manufacturer" means any person, firm, association, partnership, corporation, organization, combination, or joint venture, which produces a PFAS-added product, or an importer or domestic distributor of a PFAS-added product, which is produced in a foreign country. In the case of a multi-component PFAS-added product, the manufacturer is the last manufacturer to produce or assemble the product. If the multi-component product is produced in a foreign country, the manufacturer is the importer or domestic distributor. (m) "Medical device" has the meaning given "device" under 21 U.S.C. section 321(h). (n) Perfluoroalkyl and polyfluoroalkyl substances or "PFAS" means "PFAS" as defined in 40 C.F.R. 705.3. (o) "PFAS-added consumer product" means: (1) A product, commodity, chemical, or product component that was manufactured after the effective date of this section; (2) That contains PFAS intentionally added to the product, commodity, chemical, or product component; and (3) Is a consumer product. These products include formulated PFAS-added products, and fabricated PFAS-added products. (p) "PFAS-added product" means: (1) A product, including a PFAS-added consumer product, commodity, chemical, or product component that was manufactured after the effective date of this section; and (2) That contains PFAS intentionally added to the product, commodity, chemical, or product component. (q) "Product" means an item manufactured, assembled, packaged, or otherwise prepared for sale to consumers, including its product components, sold, or distributed for personal, residential, commercial, or industrial use, including for use in making other products. (r) "Product component" means an identifiable component of a product, regardless of whether the manufacturer of the product is the manufacturer of the component. (s) "Supplier" has the same meaning as in RSA 149-M:33, X. (t) "Upholstered furniture" means an article of furniture that is designed for sitting, resting, or reclining and is wholly or partly stuffed or filled with filling material. (u) "Textile" means an item made in whole or part from a natural or synthetic fiber, yarn, or fabric. Textile includes but is not limited to leather, cotton, silk, jute, hemp, wool, viscose, nylon, and polyester. (v) "Textile furnishings" means textile goods of a type customarily used in households and businesses, including but not limited to, draperies, floor coverings, furnishings, bedding, towels, and tablecloths. "Textile furnishings" does not include textiles used in medical or industrial settings. (w) "Textile treatment" means a product intended to be applied to a textile to give or enhance one or more characteristics, including, but not limited to, stain resistance or water resistance. "Textile treatment" does not include textile dye. II. (a) The following are exempt from the requirements of this section: (1) The resale of products manufactured prior to the ban imposed by this section. (2) A product for which federal law governs the presence of PFAS in the product in a manner that preempts state authority. (3) Products regulated as drugs or medical devices by the United States Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321 et seq. (4) Public water systems as defined by RSA 485:1-a, XV, wastewater treatment plants as defined by RSA 485-A:2, XVI-a, or a government-owned facility as the term facility is defined in RSA 149-M:4, IX. (5) Products or substances approved as substitutes under the Significant New Alternatives Policy program of the United States Environmental Protection Agency, pursuant to section 612 of the amended Clean Air Act of 1990, 42 U.S.C. section 7671k, or substitutes needed to execute the American Innovation and Manufacturing Act, 42 U.S.C. section 7675 et seq. This exemption does not apply to PFAS-added products banned by this section. (b) The following are exempt from the PFAS ban imposed by this section: (1) Products made with at least 85 percent recycled content. (2) Products manufactured prior to the ban imposed by this section. (3) Replacement parts for products manufactured prior to the ban imposed by this section. III. (a) The department is authorized to participate in the establishment and implementation of a multi-jurisdictional clearinghouse to assist in carrying out the requirements of this section and to help coordinate applications and reviews of the manufacturer obligations under the section. The clearinghouse may also maintain a database of all products containing PFAS, including PFAS-added products; a file on all exemptions granted by the participating jurisdictions; a file on alternative labeling plans; and a file of all the manufacturers' reports on the effectiveness of any PFAS-added product collection systems they may institute. (b) Public disclosure of confidential business information submitted to the department pursuant to this section shall be governed by the requirements of the state's freedom of information act. Notwithstanding the requirements of the state's freedom of information act, the department may provide the interjurisdictional clearinghouse with copies of such information and the interjurisdictional clearinghouse may compile or publish analyses or summaries of such information provided that the analyses or summaries do not identify any manufacturer or reveal any confidential information. Clearinghouse members and employees shall be viewed as operating under a common interest and conversations among and between members or employees shall not violate any exception to any member jurisdiction's freedom of information act. IV. Product Ban. On January 1, 2027, the following PFAS-added consumer products shall be prohibited from being sold, offered for sale, or distributed for sale or for promotional purposes in the state: (a) Carpets or rugs. (b) Cosmetics. (c) Textile treatments. (d) Feminine hygiene products. (e) Food packaging and containers. (f) Juvenile products. (g) Upholstered furniture. (h) Textile furnishings. (i) Waxes produced for use on boats, skis, surfboards, bodyboards, or skimboards. V. (a) Upon request by the department, a certificate of compliance, or copies thereof, stating that a product is in compliance with the requirements of this section shall be furnished by its manufacturer or supplier to the department. (b) Where compliance is achieved under any jurisdictional exemptions provided in paragraph II, the certificate of compliance shall state the specific basis upon which the exemption is claimed. (c) The certificate of compliance shall be signed by an authorized official of the manufacturer or supplier. The purchaser shall retain the certificate of compliance for as long as the produce is in use. A certificate of compliance shall be kept on file by the manufacturer or supplier. A manufacturer or supplier may make the certificate of compliance available on their company website or through an authorized representative of the company such as an interjurisdictional clearinghouse. (d) If the manufacturer or supplier of a product reformulates or creates a new product, the manufacturer or supplier shall provide an amended or new certificate of compliance for such reformulated or new product to the department. (e) Within 30 days of receipt of a request by the department under this section, the manufacturer or supplier shall: (1) Provide the department with the certificate of compliance attesting that the product does not contain a chemical regulated under this act; or (2) Notify persons who sell the product containing chemicals regulated under this section that the sale of the product is prohibited, and provide the department with a copy of the notice and a list of the names and addresses of those notified. VI. The department may adopt, under RSA 541-A, any rules necessary for the implementation, administration, and enforcement of this section. VII. (a) The department may enforce this section pursuant to its authority under RSA 149-M:38. The commissioner may coordinate with the commissioner of the department of health and human services in enforcing this section, if necessary. (b) When requested by the department, a person shall furnish to the department any information that the person may have or may reasonably obtain that is relevant to show compliance with this section. VIII. On or before January 1, 2026, and every 3 years thereafter, the department shall submit a report to the governor and the general court regarding implementation of this section, and other state and federal laws governing PFAS-added products. In preparation of the report, the department shall review the status of development of and state participation in a multi-jurisdictional clearinghouse pursuant to paragraph III of this section, as well as relevant data available through the Environmental Protection Agency reporting requirements for PFAS use pursuant to the Toxic Substances Control Act section 8(a)7. The report shall include a review of implementation costs for this section and any recommendations for legislative changes.