PFAS by Proxy: Washington’s New PFAS Rule Redefines “Intentionally Added”

Consumers are increasingly drawn to products that pledge they are made without “intentionally added PFAS.”  But a newly adopted Washington State rule may turn that assurance into a litigation risk.  The rule—one of the most aggressive PFAS regulations in the country—redefines what it means for PFAS to be “intentionally added.”  That term will now apply to any product that contains PFAS-adjacent chemicals, regardless of whether PFAS is actually present or intentionally used.  As a result, manufacturers and retailers could face regulatory scrutiny or consumer lawsuits even when PFAS is not even present, let alone deliberately used.

Key Takeaways:

• Presumed Intent: Washington’s new rule presumes PFAS has been intentionally added if a product contains as little as 50 ppm of total fluorine, regardless of whether PFAS is actually present or intentionally used.
• Broader Scope: Unlike other states, which look for organic fluorine as a PFAS proxy, this rule focuses on total fluorine, sweeping in both organic fluorine and inorganic fluoride—a common compound found in toothpaste, among other places.
• Lower Threshold: This low, imprecise threshold increases the likelihood that products will be incorrectly presumed to contain intentionally added PFAS.
• Litigation Risk: Plaintiffs may use the presumption to challenge “no intentionally added PFAS” claims through consumer-fraud lawsuits.
• Compliance Review: Companies should reassess PFAS-related marketing claims and consider enhancing testing protocols to include total fluorine analysis.

Browse for a rain jacket or a pair of waterproof boots and you may come across a disclaimer like this: “Made without intentionally added PFAS.”  But a new Washington State rule, perhaps one of the nation’s strictest PFAS regulations, could turn that increasingly common hedge into fodder for lawsuits.

Recently adopted and with provisions that will take effect over the coming year, the new rule will eventually ban the sale, manufacture, or distribution of certain clothes, accessories, and cleaning products that are presumed to contain intentionally added PFAS.  It will also require manufacturers to affirmatively identify and report other types of products that are presumed to contain intentionally added PFAS.  Though that might sound similar to other states’ laws, Washington’s goes much further, and it does so in two key ways:

First, the law defines “intentionally added” in a way that has nothing to do with intention at all.  Rather, if a product contains more than a certain amount of total fluorine—an indication that PFAS might be present—the law presumes that PFAS is not only present but has been intentionally added, putting manufacturers on the hook to show otherwise.

Second, the threshold amount of fluorine that triggers this presumption is both lower and less specific than analogous thresholds in other states.  In California, for instance, many PFAS regulations kick in when certain products are shown to contain at least 100 parts per million, or ppm, of organic fluorine—a flawed proxy for the presence of PFAS.  And while California presumes that PFAS is present at that point, it does not automatically presume PFAS has been intentionally added.  But the Washington rule uses an even less precise and more troubling proxy.  It presumes PFAS has been intentionally added whenever a product is shown to contain 50 ppm of total fluorine—a broader category that includes both organic fluorine and inorganic fluoride, the latter of which encompasses compounds such as the fluoride found in toothpaste and drinking water.  By setting so low a threshold for such a broad category, Washington’s rule all but guarantees that countless products will be incorrectly presumed to have “intentionally added” PFAS.

In the hands of the plaintiffs’ bar, this rule could lead to a raft of lawsuits targeting manufacturers and retailers who claim—in good faith—that they don’t intentionally add PFAS to their products.  A potential plaintiff could test any product accompanied by such a claim and, if it crosses the 50 ppm threshold, assert that the claim is misleading based on the Washington rule’s presumption.  Of course, a complaint based on such a test would still be vulnerable to a motion to dismiss.  Plaintiffs alleging consumer fraud claims, for example, would still need to allege requisite intent and also meet Federal Rule of Civil Procedure 9(b)’s particularity requirements.  And presumptions based on shaky science do not line up with “reasonable consumer” standards.

Still, based on this development, companies that currently use “intentionally added” PFAS representations may want to consider replacing them with suitable alternatives and augmenting current product testing protocols to add analyses of total fluorine.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Hannah Y. Chanoine, an O’Melveny partner licensed to practice law in Massachusetts and New York; Dawn Sestito, an O’Melveny partner licensed to practice law in California; David Marroso, an O'Melveny partner licensed to practice law in California; Matt Powers, an O’Melveny partner licensed to practice law in California; Amy Laurendeau, an O’Melveny partner licensed to practice law in California; and Andrew Weisberg, an O’Melveny counsel licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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