TITLE 20 ENVIRONMENTAL PROTECTION
CHAPTER 13 PER- AND POLY-FLUOROALKYL SUBSTANCES IN CONSUMER PRODUCTS
PART 2 PROHIBITIONS ON PRODUCTS CONTAINING PER- OR POLY-FLUOROALKYL
SUBSTANCES; CURRENTLY UNAVOIDABLE USE; REPORTING; LABELING; TESTING; FEES AND
PENALTIES
20.13.2.1 ISSUING AGENCY: Environmental Improvement Board.
[20.13.2.1 NMAC – N, 07/01/2026]
20.13.2.2 SCOPE: This part applies to manufacturers,
distributors, and retailers that sell, offer for sale, distribute or distribute
for sale in the state of New Mexico, directly or indirectly or through
intermediaries, certain products to which per- or poly-fluoroalkyl substances (PFAS)
are intentionally added.
[20.13.2.2 NMAC – N, 07/01/2026]
20.13.2.3 STATUTORY AUTHORITY: Statutory authority comes from the Environmental Improvement
Act, Sections 74-1-1 NMSA 1978 et seq., the Per- and Poly-Fluoroalkyl
Substances Protection Act, Sections 74-15-1 NMSA 1978 et seq., and the
Department of Environment Act, Sections 9-7A-1 NMSA 1978 et seq.
[20.13.2.3 NMAC – N, 07/01/2026]
20.13.2.4 DURATION: Permanent.
[20.13.2.4 NMAC – N, 07/01/2026]
20.13.2.5 EFFECTIVE DATE:
July 1, 2026, unless a later date is
cited at the end of a section.
[20.13.2.5 NMAC – N, 07/01/2026]
20.13.2.6 OBJECTIVE: The objective of this part is to establish rules for the
prohibition of certain products that contain an intentionally added per- or
poly-fluoroalkyl substance, for the reporting of information and testing of
products sold, offered for sale, distributed or distributed for sale in New
Mexico that contain intentionally added per- and poly-fluoroalkyl substances,
and for the labeling of certain products sold, offered for sale, distributed or
distributed for sale in New Mexico that contain intentionally added per- and
poly-fluoroalkyl substances. In
addition, the objective of this part is to establish fees for mandatory
reporting and applications for currently unavoidable use designations. Further, this part establishes provisions for
enforcement, penalties and administrative costs related to violations of the
Per- and Poly-Fluoroalkyl Substances Protection Act, Sections 74-15-4 NMSA 1978
et seq. Penalties, fees, and
administrative costs paid are for deposit into the recycling and illegal
dumping fund.
[20.13.2.6 NMAC – N, 07/01/2026]
20.13.2.7 DEFINITIONS: The definitions in the Per- and
Poly-Fluoroalkyl Substances Protection Act, Section 74-15-2 NMSA 1978 shall
apply in this part. The following terms,
as used in this part, have the following meanings:
A. “Brand
name” means a name, symbol, word, or mark
that identifies a product, and attributes the product to the owner of the brand;
B. “Commercially
available analytical method”
means any test methodology used by a laboratory that performs analyses or tests
for third parties to determine the concentration of per- and poly-fluoroalkyl
substances in a product or a methodology which is publicly available or
available for purchase. Commercially available analytical methods do not need
to be performed at a third-party laboratory; however, the method must remain
unmodified. Laboratories performing commercially available analytical methods
must be certified by the department or by a national or regional certifying
authority recognized by the department;
C. “Complex
durable good” means a product that is a
manufactured good composed of 100 or more manufactured components, with an
intended useful life of five or more years, where the product is typically not
consumed, destroyed, or discarded after a single use;
D. “Consumer” means one who seeks or acquires by purchase or lease, any consumer
product as that term is defined in Section 2 of the Per- and Poly-Fluoroalkyl
Substances Protection Act, Section 74-15-2 NMSA 1978;
E. “Consumer
information” means warnings, directions for use,
ingredients lists, and nutritional information. “Consumer information” does not
include the brand name, product name, company name, location of manufacturer,
or product advertising;
F. “Consumer
packaging” means packaging constituting, with
its contents, a sales unit to the final user or consumer at the point of
retail. Also referred to as retail packaging, sales packaging, or primary
packaging;
G. “Distribute
for sale” means to ship or otherwise
transport a product with the intent or understanding that it will be sold or
offered for sale in New Mexico by a receiving party subsequent to its delivery;
H. “Labeling” means any written, printed, graphic, or electronically
provided communication that accompanies a product, such as a package insert;
I. “Legible” means capable of being read by a person with normal vision;
J. “Product
class” means a group of products that share similar essential physical
characteristics, function and may be substitutable;
K. “Product
label” means a display of written,
printed, or graphic material that appears on, or is affixed to, the exterior of
a product, or its exterior container or wrapper that is visible to a consumer,
if the product has an exterior container or wrapper;
L. “Publicly
available” means information that is lawfully
made available to the general public from federal, state, or local government
records, widely distributed media, or disclosures made to the general public
that are required by federal, state, or local law;
M. “Retailer” means any person or business that sells or otherwise
provides products containing intentionally added per- and poly-fluoroalkyl
substances in New Mexico, including persons who sell directly to consumers and
persons who sell to others for resale by any means, including via the internet;
N. “Significant
change” means a change in the composition
of a product that results in the intentional addition of a specific per- and
poly-fluoroalkyl substance; a change in the amount of per- and poly-fluoroalkyl
substances of more than a ten percent increase, above the method variability
allowed by the commercially available analytical method used, of the
concentration that has been reported when compared to the existing
notification; or a change in responsible official or contact information. Significant
change includes when information used to obtain a waiver is no longer accurate;
O. “Substantially
equivalent information” means
information that the department can reasonably identify as conveying the same
information required in Section 20.13.2.12 NMAC of this rule. Substantially
equivalent information must all be in a single document or location.
Substantially equivalent information may include an existing notification by a
person who manufactures a product or product component when the same product or
product component is offered for sale under multiple brands;
P. “Used” means the condition of a product having been installed,
operated, or utilized for its intended purpose by at least one owner or
operator. Used does not apply to a product that has been returned to a retailer
or that is otherwise offered for resale without the product having been
installed, operated, or utilized;
Q. “Watercraft” means any contrivance used or designed for navigation on
water including but not limited to any vessel, ship, boat, motor vessel,
personal watercraft, steam vessel, vessel operated by machinery either
permanently or temporarily affixed, motorboat, sailboat, barge, tugboat and
rowboat.
[20.13.2.7 NMAC – N, 07/01/2026]
20.13.2.8 SEVERABILITY: If any provision or application of this part
is held invalid, the remainder, or its application to other situations or
persons, shall not be affected.
[20.13.2.8 NMAC – N, 07/01/2026]
20.13.2.9 PROHIBITIONS
ON PRODUCTS CONTAINING PER- OR POLY-FLUOROALKYL SUBSTANCES: This section pertains to
the prohibition of the sale, offering for sale, distribution, or offering for
distribution of certain products containing intentionally added per- or
poly-fluoroalkyl substances. Manufacturers are responsible for determining if
their products contain an intentionally added per- or poly-fluoroalkyl
substance as enumerated in Subsection A through C of this section.
A. Except
as provided in Section 20.13.2.10 NMAC of
this rule, beginning January 1, 2027, a manufacturer may not sell, offer for
sale, distribute 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;
(4) juvenile products; and
(5) firefighting foam.
B. Except as provided in Section 20.13.2.10
NMAC of this rule, beginning January 1, 2028, a manufacturer may not sell, offer
for sale, distribute 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.
C. Except
as provided in Section 20.13.2.10 NMAC of
this rule, beginning January 1, 2032, a manufacturer may not sell, offer for
sale, distribute or distribute for sale in this state, directly or indirectly
or through intermediaries, a product containing an intentionally added per- or
polyfluoroalkyl 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 or is or otherwise exempt pursuant to Section 20.13.2.10
NMAC of this rule.
D. On or after January 1, 2028, a
manufacturer may not sell, offer for sale, distribute or distribute for sale in
this state, directly or indirectly or through intermediaries, a product if
testing requested by the department, as enumerated in Section 20.13.2.14 NMAC
of this rule, 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 Section 20.13.2.12 NMAC of this rule.
E. On or after January 1, 2028, a
manufacturer, trade association, or other responsible party may not sell, offer
for sale, distribute 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 Section 20.13.2.12 NMAC of this rule.
[20.13.2.9 NMAC – N, 07/01/2026]
20.13.2.10 EXEMPTIONS: The following are exempt from the
requirements in Sections 20.13.2.11 NMAC, 20.13.2.12 NMAC, and 20.13.2.14 NMAC
(limited to medical devices outlined in Subsection C of this Section) of this
rule:
A. 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;
B. Used products offered for sale or
resale;
C. Medical devices or drugs and the
packaging of the medical devices or drugs that are regulated by the United
States food and drug administration, including prosthetic and orthotic devices;
D. Cooling, heating, ventilation, air conditioning
or refrigeration equipment that contains intentionally added per- or
poly-fluoroalkyl substances or refrigerants listed as acceptable, acceptable
subject to use conditions or acceptable to narrowed use limits by the United States
environmental protection agency pursuant to the significant new alternatives
policy program, Subpart G of 40 CFR Part 82, and sold, offered for sale,
distributed or distributed for sale for the use for which the refrigerant is
listed pursuant to that program;
E. A veterinary product and its packaging intended
for use in or on animals, including diagnostic equipment or test kits and the
veterinary product’s components and any product that is a veterinary medical
device, drug, biologic or parasiticide or that is otherwise used in a veterinary
medical setting or in veterinary medical applications that are regulated by or
under the jurisdiction of:
(1) The United States food and drug administration;
(2) The United States department of agriculture
pursuant to the federal Virus-Serum-Toxin Act; or
(3) The United States environmental protection
agency pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), except that any such products approved by the United States
environmental protection agency pursuant to that law for aerial and land application
are not exempt from this section;
F. A product developed or manufactured for
the purpose of public health or environmental or water quality testing;
G. A motor vehicle or motor vehicle
equipment regulated under a federal motor vehicle safety standard, as defined
in 49 United States Code, Section 30102(a)(10), except that the exemption under
this paragraph does not apply to any textile article or refrigerant that is
included in or as a component part of such products;
H. Any other motor vehicle, including an off-highway
vehicle or a specialty motor vehicle, such as an all-terrain vehicle, a side
by-side vehicle, farm equipment or a personal assistive mobility device;
I. A watercraft, an aircraft, a
lighter-than air aircraft or a seaplane;
J. A semiconductor, including
semiconductors incorporated in electronic equipment, and materials used in the manufacture
of semiconductors;
K. Non-consumer electronics and
non-consumer laboratory equipment not ordinarily used for personal, family or
household purposes;
L. A product that contains intentionally added
per- or poly-fluoroalkyl substances with uses that are currently listed as
acceptable, acceptable subject to use conditions or acceptable subject to
narrowed use limits in the United States environmental protection agency's
rules under the significant new alternatives policy program; provided that the product
contains per- or poly-fluoroalkyl substances that are being used as substitutes
for ozone-depleting substances under the conditions specified in the rules;
M. A product used for the generation,
distribution or storage of electricity;
N. Equipment directly used in the
manufacture or development of the products described in Paragraphs (A) through (M)
of this section;
O. A product for which the board has
adopted a rule providing that the use of the per- or poly-fluoroalkyl
substances in that product is a currently unavoidable use; or
P. A product that contains fluoropolymers
consisting of polymeric substances for which the backbone of the polymer is
either a per- or polyfluorinated carbon-only backbone or a perfluorinated
polyether backbone that is a solid at standard temperature and pressure.
Q. A
pesticide that is regulated by or under the jurisdiction of the Federal
Insecticide, Fungicide, and Rodenticide Act.
[20.13.2.10 NMAC – N, 07/01/2026]
20.13.2.11 CURRENTLY UNAVOIDABLE
USE: This section provides directions for submitting CUU
proposals.
A. Proposals
for currently unavoidable use (CUU) determinations may be submitted by
manufacturers individually or collectively. A separate proposal must be
submitted for each individual combination of
product category and the associated industrial sector (i.e., North American
Industry Classification System (NAICS) code). Proposals will be submitted using the
department’s online submission portal. For
initial currently unavoidable use proposals, the requester shall submit the
information identified in this section of the rule no later than 12 months
prior to the applicable sales prohibition. The department will not consider any
proposals for an initial currently unavoidable use determination prior to 60
months in advance of the applicable sales prohibition; any proposals received
prior to this date will need to be updated and resubmitted between 60 and 12
months before the effective date of the applicable sales prohibition (with the
exception of CUU proposals for sales prohibitions taking effect January 1, 2027,
which must be submitted no later than October 31, 2026. Complete CUU proposals for sales prohibitions
effective January 1, 2027, received by October 31, 2026, will be considered
approved pending review and a final determination of whether to approve or deny
the proposals will be issued by the department by March 1, 2027). A proposal must, at a minimum, contain:
(1) Identification of the specific per- or
poly-fluoroalkyl substance(s) intentionally added to the product or its
components as identified by:
(a) The chemical name, and
(b) The Chemical Abstracts Service Registry
number (CASRN), or if no CASRN exists, another chemical identifying number.
(2) A brief description of the type of product to which a per- or
poly-fluoroalkyl substance is intentionally added including:
(a) A brief narrative of the product; its physical structure and
appearance; how it functions; and if applicable its place in larger items,
systems, or processes;
(b) If applicable, the universal product code, stock keeping
unit or other numeric code assigned to the product; and
(c) NAICS code for the sector or sectors in which the products
containing intentionally added per- and poly-fluoroalkyl substances will be used.
(3) An explanation of why the inclusion of per- or
poly-fluoroalkyl substances in the specific product is essential for health,
safety or the functioning of society. This explanation may include or take the
form of a description of the negative impact that would be caused by the removal
of per- or poly-fluoroalkyl substances for use in the product and the
subsequent unavailability or unsatisfactory performance of the product;
(4) A description of how the specific use of per- or
poly-fluoroalkyl substances in the product is essential to the function of the
product. Including:
(a) If the use of per- or poly-fluoroalkyl substances in the
product is required by federal or state law or regulation, provide citations to
that requirement. For the purposes of this section, “required” means the
applicable statute or regulation specifically states that per- or
poly-fluoroalkyl substances or a specific per- or poly-fluoroalkyl substance is
required to be present in the product, not that the proposer’s understanding or
experience of per- or poly-fluoroalkyl substances is necessary to meet a
performance standard; such performance standards may be addressed below; and
(b) The required specific characteristic or combination of
characteristics that necessitate the use of per- and poly-fluoroalkyl
substances.
(5) A description of whether there are alternatives for this
specific use of per- or poly-fluoroalkyl substances that are reasonably
available including:
(a) Identification of specific compounds, classes of materials,
or combinations of materials identified as potential alternatives including the
removal of per- and poly-fluoroalkyl substances without substitution;
(b) An assessment of how the materials above meet or fail to
meet the criteria identified in Subparagraph (b) of Paragraph (4) of Subsection
A of Section 20.13.2.11 NMAC of this rule;
(c) An assessment if materials identified in Subparagraph (a) of
Paragraph (5) of Subsection A of Section 20.13.2.11
NMAC of this rule are anticipated to be available in sufficient quantities to
meet production needs without regard to cost;
(d) An assessment of the anticipated cost difference between
obtaining per- or poly-fluoroalkyl substances for use in a product and
obtaining the material identified for the same purpose;
(e) A comparison of the known risks to human health and the
environment between per- or poly-fluoroalkyl substances and the materials
identified; and
(f) An assessment of whether there are feasible changes to the
manufacturing process of the product that would eliminate the need for per- and
poly-fluoroalkyl substances.
(6) A list of federal regulations, other State of New Mexico
rules, and regulations of other states to which the product described in Subsection
A of Section 20.13.2.11 NMAC of this rule is
subject by reason of containing intentionally added per- or poly-fluoroalkyl
substances, including details of any sales prohibition the product is subject
to because of containing intentionally added per- or poly-fluoroalkyl
substances including;
(a) Whether that sales prohibition is absolute or if there is a
process similar to the State of New Mexico’s currently unavoidable use
determination.
(b) If there is a similar process available, whether the
requester has filed a proposal under the relevant state or federal program, and
its status.
(7) If, in another jurisdiction the product is subject to an
absolute prohibition or no currently unavoidable use determination or similar
has been made, a list of comparable products that the proposer is aware of
remaining available for sale, offered for sale, distributed or distributed for
sale within that jurisdiction;
(8) If a similar program’s sales prohibition is identified as
applicable in Paragraph (6) of Subsection A of Section 20.13.2.11 NMAC of this rule and similar products are available for sale,
offered for sale, distributed or distributed for sale;
(a) A justification explaining how products available in
compliance with other similar sales prohibitions are not reasonably available
alternatives for the product subject to the proposed CUU in the State of New
Mexico. This justification may include demonstrating that additional sales in
the State of New Mexico would result in such an increased demand for the per- or
poly-fluoroalkyl substance alternative that it would no longer be available in
sufficient quantities. Such a demonstration must include an assessment that an
increase in production of the per- or poly-fluoroalkyl substance alternative is
not possible; or
(b) Documentation demonstrating that products containing per- or
poly-fluoroalkyl substance alternatives in other jurisdictions would not
perform as intended in the State of New Mexico due to differing physical or
climate conditions in the State of New Mexico;
(9) Contact information for the submitter of the proposal. The
contact person or persons should be familiar with the contents of the proposal
and, if necessary, be able to answer department questions or provide additional
requested information; and
(10) Any information known or reasonably ascertainable by the
manufacturer regarding the impacts on human health or the environment of per- or
poly-fluoroalkyl substances in the product. At a minimum this information should
include the following items, if available;
(a) Any information documenting impacts on human health as a
result of the specific use of per- or poly- fluoroalkyl substance in the
product;
(b) A description of the likely pathways of human exposure for
the specific use of per- or poly-fluoroalkyl substances in the product;
(c) Any information documenting environmental impacts as a
result of the specific use of per- or poly-fluoroalkyl substances in the
product;
(d) A
description of any likely pathways for environmental release of per- or
poly-fluoroalkyl substances as a result of the specific use of per- or
poly-fluoroalkyl substances in the product; and
(e) A description of the product’s fate at the end of its
lifecycle including;
i. Documentation
of any product stewardship programs or other government-imposed processes at
the end of a product’s lifecycle,
ii. How the product is intended to be disposed of, such as
landfilling or via a sewage or septage system, and
iii. The recycling rate of the product. Information submitted to the department must
contain sufficient detail or supporting documentation to satisfy the
requirements of the currently unavoidable use as essential for health, safety
or the functioning of society for which alternatives are not reasonably
available.
If any of the information above is omitted from the
proposal, the requestor must explain why this information is omitted.
B. The
department will consider CUU determinations made by other states for products
subject to this rule. For consideration
to be given, the manufacturer must provide the department with documents
evidencing the CUU determination from the other state in the same timeframe as
stipulated in Subsection A of Section 20.13.2.11 NMAC of this rule.
C. Should
a proposal for a currently unavoidable use determination contain claims of
confidentiality, the department may determine that there is insufficient
publicly available information to evaluate the proposal. The department
strongly recommends that all proposals for currently unavoidable use
determinations do not contain claims of confidentiality.
D. CUU
designations will expire three years after approval. Upon expiration, a
currently unavoidable use determination is no longer applicable, and all sales,
offers for sale, distributions or distributions for sale are immediately
prohibited. If a person believes the currently unavoidable use remains, they
may submit a proposal to the department for a new
currently unavoidable use determination. That proposal, in addition to the
information required in Paragraphs (1) through (10) of Subsection A of Section 20.13.2.11 NMAC of this rule, must include a
description of any changes since the time of the first currently unavoidable
use determination and a summary of efforts made during that time to develop or
discover alternatives or to make existing alternatives reasonably available.
The department will consider all subsequent proposals no sooner than 24 months
prior to and no later than 12 months prior to the expiration date of the
determination in effect.
E. A
list of approved CUUs will be made available to the public and posted on the
NMED website.
[20.13.2.11 NMAC – N, 07/01/2026]
20.13.2.12 REPORTING REQUIREMENT: A
manufacturer of a product sold, offered for sale, distributed or distributed
for sale in the state must submit a report for each product or component that contains
intentionally added per- or poly-fluoroalkyl substances.
A. In
the case of official reporting, “manufacturers” refer to individual
manufacturers, as well as groups reporting on behalf of other manufacturers.
All manufacturers must assume responsibility to report unless manufacturers
in the same supply chain enter into an agreement to establish their respective
reporting responsibilities. A manufacturer may submit the information required
for reporting on behalf of another manufacturer. A trade organization
representing the manufacturer or group of manufacturers may also submit the
information required for reporting if the following requirements are met:
(1) The reporting manufacturer or trade organization must notify
any other manufacturer that is a party to the agreement that the reporting
manufacturer has fulfilled the reporting requirements;
(2) All manufacturers must maintain documentation of a reporting
responsibility;
(3) All manufacturers must execute the agreement and must
provide the documentation to the department upon request;
(4) All manufacturers must verify, in a format specified by the
department, that the data submitted on their behalf is accurate and complete;
and
(5) For the verification required under Paragraph (4) of Subsection
A of Section 20.13.2.12 NMAC of this rule to be considered complete, all
manufacturers subject to the agreement must submit the fee required under Subsection
A of Section 20.13.2.16 NMAC of this rule.
B. On
or before January 1, 2027, a manufacturer of a product sold, offered for sale,
distributed or distributed for sale in the state, directly or indirectly or
through intermediaries, that contains an intentionally added per- or
poly-fluoroalkyl substances must submit to the department the following
information:
(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, expressed as a percentage concentration in the
product, of each per- or polyfluoroalkyl substance in the product, identified
by its CASRN and reported as an exact quantity determined using commercially
available analytical methods or as falling within the following reporting ranges. The manufacturer shall provide documentation
verifying analytical method results to the department.
(a) Less than 100 ppm (0.01 percent);
(b) Equal to or more than 100 ppm (0.01 percent), but less than
500 ppm (0.05 percent);
(c) Equal to or more than 500 ppm (0.05 percent), but less than
1,000 ppm (0.1 percent);
(d) Equal to or more than 1,000 ppm (0.1 percent), but less than
5,000 ppm (0.5 percent);
(e) Equal to or more than 5,000 ppm (0.5 percent), but less than
10,000 ppm (1.0 percent); or
(f) Equal to or more than 10,000 ppm (1.0 percent).
(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; provided that the department shall not require disclosure of
records, reports or information or particular parts of records, reports or
information that would divulge confidential business records or methods or
processes entitled to protection as trade secret, and provided further that the
manufacturer shall, by a preponderance of evidence, demonstrate that the
information requested would divulge confidential business records or methods or
processes entitled to protection as trade secrets.
C. A
manufacturer shall submit a revision of the information provided on a product
within 30 days of a significant change to the information the manufacturer
previously submitted or upon the request of the department.
D. 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 publicly available. The manufacturer must
notify the department that the information is publicly available via methods
deemed acceptable by the department. The department may grant a waiver to a
manufacturer or a group of manufacturers for multiple products or a product
category.
(1) The waiver request must contain the following information:
(a) Information contained in Paragraph (4) of Subsection B of Section
20.13.2.12 NMAC of this rule;
(b) A description of the products or components for which a
waiver is requested;
(c) A list of requirements under Subsection B of Section 20.13.2.12
NMAC of this rule for which the manufacturer seeks a waiver;
(d) A description of the publicly available records that contain
substantially equivalent information to the information required under Subsection
B of Section 20.13.2.12 NMAC of this rule.
(e) A manufacturer or group of manufacturers must still submit a
report for any requirements under Subsection B of Section 20.13.2.12 NMAC of
this rule that are not waived.
(f) A manufacturer or group of manufacturers must submit the
waiver request to the department at least 30 days before the applicable
reporting due date.
(2) If the department denies a waiver request, the manufacturer
or group of manufacturers must submit their report within 30 days of the notice
of denial or by the established reporting due date, whichever is later.
E. The
department may enter into, modify, or dissolve an agreement with one or more
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.
F. 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.
(1) A manufacturer or group of manufacturers requesting an
extension must submit the request in a format specified by the department. The
request must contain:
(a) Information contained in Paragraph (4) of Subsection B of
Section 20.13.2.12 NMAC of this rule;
(b) The reason for the extension request, including a detailed
explanation of the circumstances that prevent timely submission;
(c) Supporting documentation, including any relevant documents
that substantiate the need for an extension, such as communication records with
other manufacturers, evidence of technical challenges, or third-party testing
delays; and
A
plan for completion, including an outline of how the manufacturer will submit the
remaining work by the new deadline.
(2) A manufacturer or group of manufacturers must submit the
request for an extension to the department at least 30 days before the
reporting due date established in Subsection B of Section 20.13.2.12 NMAC of
this rule. The request must include documentation demonstrating that the
extension is justified, based on the materials submitted under Subsection B of Section
20.13.2.12 NMAC of this rule, to allow the manufacturer or group of
manufacturers to comply with the reporting requirements.
(3) If the department determines that the requestor has
demonstrated that an extension is justified, based on the materials submitted
under Paragraph (1) of Subsection F of Section 20.13.2.12 NMAC of this rule,
the department will grant a 90-day extension of the established reporting due
date.
(4) If an extension request is denied by the department, the
manufacturer or group of manufacturers must submit a report according to Subsection
B of Section 20.13.2.12 NMAC of this rule within 30 days after the notice of
denial or by the established reporting due date, whichever is later.
G. Within
60 days of 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 30
days of the request.
H. The
requirements of this section do not apply to products that are exempt as
specified in Section 20.13.2.10 NMAC of this rule or that have been designated
as a currently unavoidable use pursuant to Section 20.13.2.11 NMAC of this
rule.
[20.13.2.12 NMAC – N, 07/01/2026]
20.13.2.13 LABELING:
A. Labeling
required. Unless exempted under Subsection B of Section 20.13.2.13 NMAC of this
rule, after January 1, 2027, a manufacturer may not manufacture for sale or distribution
a product containing intentionally added per- or poly-fluoroalkyl substances
unless the manufacturer does one of the following:
(1) Labels the product in accordance with the standards set
forth in Subsections C and D of Section 20.13.2.13
NMAC of this rule, as applicable;
(2) Documents in accordance with Subsection
E of Section 20.13.2.13 NMAC of this rule that the product is labeled in a
manner consistent with corresponding labeling requirements enacted by another
state.
B. Labeling
exemptions. The labeling requirements of this rule do not apply to:
(1) Used products offered for sale or resale;
(2) Products for which labeling requirements are preempted
pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
Section 136v, or for which labeling requirements currently exist at 40 C.F.R.
156.10;
(3) Veterinary products, including veterinary parasiticides and
veterinary biologics, and the packaging of veterinary products regulated by the
United States food and drug administration, the United States department of
agriculture, or the United States environmental protection agency; and
(4) Medical
devices, drugs, and the packaging of medical
devices and drugs regulated by the United States food and drug administration.
C. Labeling
standards. Prior to sale of a product that contains intentionally added per- or
poly-fluoroalkyl substances, the manufacturer of the product shall affix or
cause to be affixed, a label that conforms to the requirements of this section.
Complex durable goods are exempt from the requirements of this section and are
addressed in Subsection D of Section 20.13.2.13 NMAC of this rule.
(1) The label must clearly inform the consumer that the product
contains intentionally added per- and poly-fluoroalkyl substances. The label
shall be an outline of an Erlenmeyer flask with the word “PFAS” inside the
flask. The label must be affixed to the
product such that the label is clearly visible and legible prior to sale. The
label must be displayed with such conspicuousness as compared with other words,
statements, design or devices on the product as to render the label likely to
be seen, read, and understood by an ordinary individual under customary
conditions of purchase or use. Text shall be no smaller than the largest font
used for other consumer information on the product.
(2) Labels affixed to products must be
printed, mounted, molded, engraved, embossed, or otherwise affixed to the product.
(3) If the product is sold in consumer packaging
that obscures the label on the product, then the consumer packaging must also
be labeled in a manner compliant with Paragraph (1) of Subsection C of Section 20.13.2.13
NMAC of this rule. If, prior to sale, a
retailer re-packages the labeled product, then the retailer shall label the new
consumer packaging in accordance with this section.
(4) Where the consumer is unable to view
the labels on the product or consumer packaging at the time of purchase or
receipt, such as in catalog or online sales transactions that occur over the
internet or telephone, the manufacturer or retailer shall, prior to sale or
distribution, clearly include information to the prospective consumer prior to
purchase that the product contains intentionally added per- and
poly-fluoroalkyl substances by providing a label or disclosure as described in Paragraph
(1) of Subsection C of Section 20.13.2.13 NMAC of this rule.
(5) The manufacturer shall apply any
product and package labels required under this section unless the wholesaler or
retailer agrees in writing with the manufacturer to accept responsibility for
such application.
(6) Nothing in this section shall be
construed to require or replace such disclosure, notice or labeling that is
otherwise prohibited or prescribed by federal law.
D. Labeling
of complex durable goods with intentionally added per- or poly-fluoroalkyl
substances. Prior to sale of a complex durable good
that contains intentionally added per- or poly-fluoroalkyl substances, the
manufacturer shall conform to the information requirements of this section.
(1) A label indicating the presence of intentionally added per- or
poly-fluoroalkyl substances shall be included in the consumer facing product
specification sheet available to potential consumers prior to purchase. The label shall be an outline of an
Erlenmeyer flask with the word “PFAS” inside the flask.
(2) The label must be easily identified
and legible on the consumer facing product specification sheet. A 10-point
font or larger is presumed to be legible.
(3) The consumer facing operation and maintenance manual
associated with the complex durable good shall include a label as described in Paragraph
(1) of Subsection D of Section 20.13.2.13 NMAC of this rule indicating the
presence of intentionally added per- or poly-fluoroalkyl substances.
(4) Nothing in this section shall be
construed to require or replace such disclosure, notice or labeling that is
otherwise prohibited or prescribed by federal law.
E. Consistency
with other states. The manufacturer of a product with intentionally added per- or
poly-fluoroalkyl substances may comply with the labeling requirements of this
rule by labeling all units, or, as applicable, consumer facing specification
sheets and consumer facing operation and maintenance manuals of the product
sold in New Mexico in compliance with corresponding requirements adopted by
another state. A manufacturer may comply in this manner by providing the
department with the following:
(1) A copy of the label as it will appear
on products and consumer packaging sold in New Mexico and a narrative
explaining how it fulfills the intent of the requirements established in this
rule; and
(2) If the approved labeling plan
includes state-specific elements such as telephone numbers, statutory
references, websites or public outreach measures, a description of the
adjustments that will be made to implement the plan in New Mexico.
Submittal of these documents to the department constitutes
compliance with this rule unless, within 90 days of receipt, the department
notifies the manufacturer that the label or labeling alternative violates New
Mexico law and explains in writing the nature of the violation.
F. The
department may waive the obligation of a manufacturer to label a product or product
class as required by this section if the product is exempt pursuant to Section 20.13.2.10
NMAC of this rule, and none of the product’s material containing intentionally
added per- or poly-fluoroalkyl substances will ever come into direct contact
with a consumer while the product is being used as intended during the useful
life of the product. The waiver request
must contain the following information:
(1) Information
contained in Paragraphs (1), (3), and (4), of Subsection B of Section
20.13.2.12 NMAC of this rule;
(2) Identification
of the specific per- or poly-fluoroalkyl substance(s) intentionally added to
the product or its components by the chemical name and the Chemical Abstracts
Service Registry number (CASRN), or if no CASRN exists, another chemical
identifying number;
(3) An
explanation of why the product should not require a label pursuant to this
section; and
(4) Any other information the department deems necessary for the
evaluation of the waiver request.
(5) If seeking a label waiver for a product class, in addition
to the information in Paragraphs (1) to (4) of Subsection F of Section 20.13.2.13
NMAC, the waiver request must provide sufficient evidence to demonstrate that
the products share similar essential physical characteristics, function, and
may be substitutable. Complete label waiver
requests for an individual product or product class received by October 31,
2026, will be considered approved pending review and a final determination of
whether to approve or deny the request will be issued by the department by June
1, 2027. If a label request is denied, a manufacturer must label a product for
sale or distribution pursuant to Section 20.13.2.13 NMAC within 90 days of the
label waiver denial; products which have already been manufactured up to the
date of denial, may be sold without a label.
Approved label waiver requests will expire three years after approval.
[20.13.2.13 NMAC – N, 07/01/2026]
20.13.2.14 TESTING: If there is
reasonable suspicion that a product contains intentionally added per- or
poly-fluoroalkyl substances but either has not fulfilled the reporting
requirements specified in Section 20.13.2.12 NMAC of this rule or has not
labeled the product in accordance with Section 20.13.2.13 NMAC of this rule,
the department may test or may require a manufacturer to test their product to
determine the presence and concentration of per- and poly-fluoroalkyl
substances in the product. For the
purposes of this section, the presence of fluorine in a product or product
component above 100 ppm, as measured by a commercially available analytical
method, creates a rebuttable presumption that per- or poly-fluoroalkyl
substances were intentionally added to the product. A manufacturer must rebut the presumption by
demonstrating that the per- or poly-fluoroalkyl substances were not intentionally
added.
A. The
provisions of this section do not apply to a medical device or drug or the
packaging of a medical device or drug that is regulated by the United States food
and drug administration.
B. If
directed to test for per- and poly-fluoroalkyl substances, manufacturers must
use a commercially available analytical method to report the amount of
intentionally added per- and poly-fluoroalkyl substances within 30 days of the
testing notification. The report shall contain:
(1) Each per- or poly-fluoroalkyl
substance’s name, chemical abstracts services (CAS) number, and chemical
formula, if known or the amount, expressed as a percentage concentration in the
product, of each per- or poly-fluoroalkyl substance or the range of each per-
and poly-fluoroalkyl substance, as falling within the following reporting
ranges:
(a) Less than 100 ppm (0.01 percent);
(b) Equal
to or more than 100 ppm (0.01 percent), but less than 500 ppm (0.05 percent);
(c) Equal to or more than 500 ppm (0.05
percent), but less than 1,000 ppm (0.1 percent);
(d) Equal to or more than 1,000 ppm (0.1
percent), but less than 5,000 ppm (0.5 percent);
(e) Equal
to or more than 5,000 ppm (0.5 percent), but less than 10,000 ppm (1.0 percent);
or
(f) Equal to or more than 10,000 ppm
(1.0 percent); and
(2) Documentation verifying analytical method results to the
department.
C. If
the product is not found to contain any intentionally added per- and
poly-fluoroalkyl substances, and any fluorine from impurities or contaminants is
present below 100 ppm, the manufacturer will provide a certificate of
compliance to the department. This certificate must contain the testing
results, analytical method, and any other relevant information. A senior
management official must certify the accuracy and completeness of the
information reported on the form by signing and dating the form.
D. If
the product is found to contain any intentionally added per- or
poly-fluoroalkyl substances above 100 ppm, within 30 days the manufacturer
must:
(1) Submit a report as required in
Section 20.13.2.12 NMAC of this rule;
(2) If the product is prohibited for
sale, notify distributors and retailers that the product is prohibited for sale
or distribution in the state of New Mexico; and
(3) If the product is prohibited for sale,
provide the department with a list of the distributors and retailers notified.
[20.13.2.14 NMAC – N, 07/01/2026]
20.13.2.15 REPORTING
FEES: Every manufacturer of a product containing an
intentionally added per- or poly-fluoroalkyl substance that is sold, offered
for sale, distributed or distributed for sale in the state, directly or
indirectly or through intermediaries and is not exempt pursuant to Section 20.13.2.10
NMAC shall pay reporting fees in accordance with the provisions of this section.
[20.13.2.15 NMAC – N, 07/01/2026]
20.13.2.16 REPORTING
FEE SCHEDULE: Initial and subsequent reporting fees are
non-refundable and are set forth below:
A. A
manufacturer must pay a $2,500 fee to submit the initial report pursuant to Section
20.13.2.12 NMAC of this rule.
B. The
fee for each instance of subsequent reporting following a significant change pursuant
to Subsection C of Section 20.13.2.12 NMAC of this part is $1,000.
C. Every
year, beginning in 2028, the fees specified in this section shall be adjusted
on January 1 to reflect changes in the consumer-price index for all urban
consumers (“CPI-U”), which is published monthly by the United States Department
of Labor. The change will be calculated
by averaging the CPI-U for the last 12-month period ending on August 31 of the
previous year, then multiplying the fees by the percentage of increase (or
decrease) between that figure and the figure from the prior adjustment. If the United States Department of Labor
fails to update the CPI-U, the Secretary may propose an alternative inflation
adjustments for approval by the Environmental Improvement Board. The department shall make a fee schedule of
the fees in this section available on the department’s website.
[20.13.2.16 NMAC – N, 07/01/2026]
20.13.2.17 CURRENTLY
UNAVOIDABLE USE DESIGNATION APPLICATION FEES:
Manufacturers that apply to
designate the use of a per- or poly-fluoroalkyl substance in a product as a
currently unavoidable use, shall pay a fee to the department in accordance with
the provisions of this part.
Manufacturers that apply for a renewal of a previously approved
designation of a per- or poly-fluoroalkyl substance in a product as a currently
unavoidable use, shall pay a fee to the department in accordance with the
provisions of this part.
[20.13.2.17 NMAC – N, 07/01/2026]
20.13.2.18 CURRENTLY
UNAVOIDABLE USE DESIGNATION APPLICATION FEE SCHEDULE: Initial
and renewal application fees for currently unavoidable use designations are
non-refundable and are set forth below:
A. The
initial fee for a manufacturer applying to designate the use of a per- or
poly-fluoroalkyl substance in a product as a currently unavoidable use in a
consumer product is $5,000; and
B. The
fee for the new CUU determination to designate a per- or poly-fluoroalkyl
substance in a product as a currently unavoidable use in a product is $2,500.
C. Every
year, beginning in 2028, the fees specified in this section shall be adjusted
on January 1 to reflect changes in the consumer-price index for all urban
consumers (“CPI-U”), which is published monthly by the United States Department
of Labor. The change will be calculated
by averaging the CPI-U for the last 12-month period ending on August 31 of the
previous year, then multiplying the fees by the percentage of increase (or
decrease) between that figure and the figure from the prior adjustment. If the United States Department of Labor
fails to update the CPI-U, the Secretary shall propose an alternative inflation
adjustments for approval by the Environmental Improvement Board. The department shall make a fee schedule of
the fees in this section available on the department’s website.
[20.13.2.18 NMAC – N, 07/01/2026]
20.13.2.19 LABEL WAIVER APPLICATION FEE: Manufacturers that apply for a waiver for the requirement
to label a product containing intentionally added per- or poly-fluoroalkyl
substances shall pay a fee to the department in accordance with the provisions
of this part.
[20.13.2.19 NMAC – N, 07/01/2026]
20.13.2.20 LABEL WAIVER APPLICATION FEE SCHEDULE: Application fees for
label waiver applications are non-refundable and are set forth below:
A. The
fee for a manufacturer applying for a waiver to label a product containing
intentionally added per- or poly-fluoroalkyl substances is $2,000 and the fee
for a manufacturer applying for a waiver to label a product class containing
intentionally added per- or poly-fluoroalkyl substances is $5,000; and
B. Every
year, beginning in 2028, the fees specified in this section shall be adjusted
on January 1 to reflect changes in the consumer-price index for all urban
consumers (“CPI-U”), which is published monthly by the United States Department
of Labor. The change will be calculated
by averaging the CPI-U for the last 12-month period ending on August 31 of the
previous year, then multiplying the fees by the percentage of increase (or
decrease) between that figure and the figure from the prior adjustment. If the United States Department of Labor
fails to update the CPI-U, the Secretary shall propose an alternative inflation
adjustments for approval by the Environmental Improvement Board. The department shall make a fee schedule of
the fees in this section available on the department’s website.
[20.13.2.20 NMAC – N, 07/01/2026]
20.13.2.21 MANNER OF PAYMENT:
All fees shall be paid to the department
by online payment only by ACH or credit
card. Cash payments are not an acceptable method of payment.
[20.13.2.21 NMAC – N, 07/01/2026]
20.13.2.22 LATE CHARGES:
If any fee for which this part provides
is not paid in full when due, the person owing the fee shall pay a billing
charge of one thousand dollars ($1,000), plus late charges in the amount of an
additional one percent of all fees owed for every month or part of a month in
which the fees remain unpaid beyond the due date. Billing and late
charges shall be deposited in the recycling and illegal dumping fund and are
independent of any penalties assessed under the act.
[20.13.2.22 NMAC – N, 07/01/2026]
20.13.2.23 ENFORCEMENT, COMPLIANCE ORDERS, PENALTIES:
A. Whenever
on the basis of any credible information the Secretary determines that any
person has violated, is violating or threatens to violate any requirement of
the Per- and Poly-Fluoroalkyl Substances Act or any rule adopted and
promulgated pursuant to the act, the Secretary may:
(1) Issue a compliance order stating with
reasonable specificity the nature of the violation or threatened violation and
requiring compliance immediately or within a specified time period or assessing
a civil penalty for any past or current violation, or both; or
(2) Commence a civil action in district
court for appropriate relief, including temporary or permanent injunction.
B. A
manufacturer that violates a provision of the Per- and Poly-Fluoroalkyl
Substances 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
manufacturer administrative costs the department incurs for enforcement of the
Per- and Poly-Fluoroalkyl Substances Act or a rule adopted pursuant to that
act.
(1) If a violator fails to take corrective action within the
time specified in a compliance order, the Secretary may assess a civil penalty
of not more than twenty-five thousand dollars ($25,000) for each day of
continued noncompliance with the order.
(2) In addition to assessing a civil
penalty, the department shall recoup the economic benefit of noncompliance from
delayed or avoided compliance.
(3) Any order issued pursuant to this part shall become final
unless, no later than 30 days after the order is served, the person named in
the order submits a written request to the Secretary for a public hearing. Upon such request, the Secretary shall
promptly conduct a public hearing. The
hearing officer shall make and preserve a record of the proceedings and forward
their recommendation based on the record to the Secretary, who shall make the
final decision.
(4) In connection with any proceedings under this part, the Secretary
may issue subpoenas for the attendance and testimony of witnesses and the
production of relevant papers, books and documents and may promulgate rules for
discovery procedures.
(5) Penalties collected pursuant to an
administrative order shall be deposited in the recycling and illegal dumping
fund. Administrative costs collected
pursuant to this part shall be deposited in the recycling and illegal dumping
fund.
[20.13.2.23 NMAC – N, 07/01/2026]
HISTORY OF 20.13.2
NMAC: [RESERVED]