Contaminants Compass is a monthly newsletter that provides updates, legal observations and actionable tips to navigate the evolving legal challenges of per- and polyfluoroalkyl substances (PFAS) and similar chemicals and products.
This edition highlights significant regulatory, legislative and litigation developments, including:
- A federal injunction against New Mexico’s PFAS labeling requirement;
- A recent Ohio federal court ruling that an occupational disease exclusion in commercial general liability policies barred coverage for PFAS-related bodily injury claims brought by non-employees;
- Recent consumer class-action litigation in New York concerning pesticide residue on produce;
- California’s new law requiring the Department of Pesticide Regulation to identify registered pesticides that contain PFAS and to report on their use statewide; and
- Continued uncertainty around the timing for EPA’s yet-to-be-released Other Test Method 55 (OTM-55), its method for measuring PFAS precursors and products of incomplete destruction in air emissions.
Look for new editions every month, and feel free to reach out to the McGuireWoods PFAS & Emerging Contaminants Practice Area with questions regarding PFAS issues.
In addition to the monthly newsletter, the McGuireWoods PFAS & Emerging Contaminants practice presents a quarterly CLE series addressing recent legislative, regulatory and litigation updates and trends. Watch recordings of previous CLEs — including the most recent installment in which partners Dave Franchina and Michael Easley were joined by Geosyntec’s Travis Kline and Mark Heaney to explore PFAS risk assessment from legal, regulatory, market, supply chain and human health angles — and be notified of upcoming events.
Federal Court Grants Preliminary Injunction Blocking New Mexico’s PFAS Labeling Requirement
On Sept. 16, 2026, U.S. District Judge Margaret Strickland of the District of New Mexico granted a preliminary injunction blocking enforcement of New Mexico’s PFAS labeling regulation in ACC v. Kenney, Case No. 1:26-cv-02130. The ruling temporarily bars the state from requiring manufacturers to affix a label depicting an outline of an Erlenmeyer flask with the word “PFAS” inside on any product containing intentionally added PFAS while the lawsuit proceeds. It does not prevent the state from enforcing the unchallenged portions of the PFAS Protection Act, including its staggered product bans.
The court applied the framework in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), which subjects compelled commercial disclosures to a lower level of scrutiny when the required disclosure is purely factual and noncontroversial. Judge Strickland found that the label was likely purely factual, rejecting the plaintiffs’ arguments to the contrary.
The court reasoned that the required disclosure merely identifies a product as containing a substance within a defined class of fluorinated organic chemicals and does not express an opinion about the qualities or hazards of PFAS. The court likewise found that the disclosure was likely noncontroversial, noting that the regulation requires manufacturers neither to assert that PFAS are dangerous nor to take a position on the scientific debate regarding health or environmental risks.
However, the court concluded that the plaintiffs would likely show that no rational connection exists between the labeling requirement and the state’s asserted interests in protecting consumer health and the environment. Judge Strickland distinguished National Electrical Manufacturers Association v. Sorrell, 272 F.3d 104 (2d Cir. 2001), in which the U.S. Court of Appeals for the Second Circuit found a mercury label likely valid under Zauderer because it also told consumers how to dispose of mercury safely. New Mexico’s label, the court found, says nothing about risks, consequences or avoidance.
In the court’s words, “[a] label that conveys no information cannot be ‘inextricably intertwined’ with the goal of reducing the health and environmental impact of PFAS.” The court further observed that the defendants undermined the connection between the compelled speech and the professed goals of protecting consumer and environmental health by repeatedly characterizing the label as a “consumer awareness” measure rather than a warning. Judge Strickland reasoned that this framing reduced the state’s interest to consumer curiosity, which courts have found insufficient to justify compelling speech under the First Amendment. The court also found that the remaining preliminary injunction factors (irreparable harm, balance of equities and the public interest) favored the plaintiffs, noting that infringements on First Amendment rights, even if temporary, constitute irreparable injury.
The ruling is a significant development in the litigation over New Mexico’s PFAS labeling mandate — which the court noted is far broader than the labeling requirements in California, Colorado and Connecticut — and will be closely watched by manufacturers, trade associations and regulators in other states considering similar requirements. For more on the earlier stages of this litigation, see the July 2026 and September 2026 Contaminants Compass editions.
Ohio Federal Court Applies Occupational Disease Exclusion to Bar PFAS Coverage for Non-Employee Claims
On Sept. 3, 2026, the U.S. District Court for the Northern District of Ohio granted summary judgment to Admiral Insurance Co., holding that the occupational disease exclusion in Fire-Dex’s commercial general liability policies barred coverage for PFAS-related bodily injury claims brought by firefighters who were not Fire-Dex employees. Fire-Dex, LLC v. Admiral Ins. Co., No. 1:23-CV-01612, 2026 WL 2607665 (N.D. Ohio Sept. 3, 2026). The ruling could give insurers a new basis to contest coverage for PFAS product claims brought by workers exposed on the job. For background on PFAS insurance coverage issues more broadly, including the increasing prevalence of PFAS exclusion endorsements and potential coverage under CGL, D&O and historical policies, see the July 2026 Contaminants Compass edition.
Firefighters sued Fire-Dex, an Ohio-based manufacturer of personal protective equipment for firefighters (primarily turnout gear, but also boots, hoods, gloves and helmets), alleging that repeated occupational exposure to PFAS in Fire-Dex products caused them to develop cancer. Fire-Dex sought defense and indemnity under two CGL policies issued by Admiral covering the period from January 2014 to January 2016. Admiral denied coverage under the policies’ occupational disease exclusion, which stated that there was “no coverage afforded under this policy for any ‘bodily injury’ to any individual resulting from any occupational or environmental disease arising out of any insured’s operations, completed operations or products.” Fire-Dex argued that the exclusion applied only to claims brought by its own employees because the phrase “occupational disease” is a workers’ compensation concept and should be limited to claims by workers eligible for compensation from their employers.
Addressing the issue as a matter of first impression under Ohio law, Judge Bridget Meehan Brennan rejected Fire-Dex’s position on two independent grounds. First, the court held that workers’ compensation eligibility follows from, rather than defines, an occupational disease. Relying on the Ohio Supreme Court’s three-part definition in State ex rel. Ohio Bell Telephone Co. v. Krise, 327 N.E.2d 756 (Ohio 1975), Ohio Rev. Code § 4123.01(F) and dictionary definitions, the court concluded that a disease is occupational if contracted during and because of employment, under conditions not generally faced by the public. The claimant’s target — an employer, product manufacturer or another party — does not change that character.
Second, the policy language resolved the dispute: the exclusion covered “any individual” with an occupational disease, not only employees. A separate exclusion for claims by “any employee” under “occupational disease law” confirmed that the terms carried different meanings. The court also relied on the Connecticut Supreme Court’s decision in R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 216 A.3d 629 (Conn. 2019), which rejected the same employees-only argument.
This decision matters for several reasons. First, although the court acknowledged that the scope of an occupational disease exclusion is a question of first impression under Ohio law, it declined Fire-Dex’s request to certify the question to the Ohio Supreme Court, concluding that existing Ohio workers’ compensation law and the policy’s express “any individual” language supplied a sufficiently clear path. Second, the court characterized its holding as a party-specific ruling based on the particular policy language rather than a sweeping pronouncement about occupational disease exclusions under Ohio law, so the precise wording of an exclusion will matter.
Third, the court left several questions open: Having found the occupational disease exclusion dispositive, it did not reach the other exclusions Admiral raised, and it dismissed Travelers’ counterclaim regarding the umbrella policies for lack of standing because Fire-Dex had not yet sought umbrella coverage, leaving coverage under the umbrella layer unresolved.
PFAS Pesticide Residues on Fresh Produce Trigger Consumer Class Action in New York Federal Court
On Sept. 24, 2026, a consumer filed a proposed class action in the U.S. District Court for the Eastern District of New York alleging that a major berry producer marketed its conventional strawberries as subject to “rigorous food safety and quality standards” without disclosing the alleged presence of PFAS-related pesticide residues on the fruit. Farley v. Driscoll’s, Inc., Case No. 2:26-cv-05950 (E.D.N.Y.). The complaint asserts claims under New York General Business Law §§ 349 and 350 on behalf of a putative New York subclass, as well as an unjust enrichment claim on behalf of a nationwide class or, alternatively, the New York subclass.
The suit centers on laboratory testing initiated by a third-party wellness website and publicly reported in May 2026. The testing detected residues of 12 pesticides on the defendant’s conventional strawberries — eight of which the complaint characterizes as PFAS or “forever pesticides”: flonicamid, fludioxonil, flupyradifurone, fluxapyroxad, indoxacarb, novaluron, tetraconazole and TFNG. The complaint alleges that the defendant cultivated a premium brand identity built around quality, safety, scientific innovation and rigorous food-safety standards. According to the complaint, its marketing representations — including a trademarked slogan that allegedly appears on the product’s packaging and throughout its marketing — conveyed to consumers that the strawberries met reasonable safety expectations and were produced using carefully controlled growing practices. The plaintiff also alleges that the company exercises extensive control over its growers through proprietary varieties, quality standards, third-party audits and grower training, and that it promotes oversight measures such as pesticide controls, residue testing and environmental monitoring. It further alleges that information about these practices was known only to the defendant and its growers.
The economic injury theory rests on price-premium and benefit-of-the-bargain damages. The plaintiff alleges that he relied on the defendant’s representations when purchasing the strawberries over the past two years and would not have purchased them — or would have paid substantially less — if the alleged PFAS-related pesticide residues had been disclosed. The complaint cites survey data reported by Pew finding that 93% of consumers are concerned about the presence of harmful chemicals in their food and that 83% want more information from companies about chemicals in their products.
This case is significant for several reasons. It represents the latest expansion of PFAS-related litigation into the food and agriculture sector through consumer protection and false advertising theories. Whether the detected pesticide residues are properly characterized as “PFAS” is itself a contested scientific and regulatory question. As discussed in the July 2026 Contaminants Compass, EPA recently approved several fluorinated pesticides for agricultural use while applying a narrower regulatory definition that limits PFAS to compounds with two or more fully fluorinated carbons. Several states, including New Mexico, California, Colorado and Connecticut, by contrast, define PFAS to include compounds with a single fully fluorinated carbon atom. The complaint relies on the broader characterization but does not address the definitional debate. Defendants in similar cases will likely challenge whether the compounds at issue meet EPA’s narrower definition of PFAS.
Equally important is the absence of federal tolerance levels for PFAS in food. As covered in the July 2026 and September 2026 Contaminants Compass editions, FDA denied a citizen petition requesting binding PFAS limits in foods — including produce — because petitioners had not supplied sufficient toxicological, exposure and feasibility data. That denial is now being challenged in Arizona federal court. Without a federal regulatory standard, no bright-line benchmark exists for determining what level of PFAS-related pesticide residues in produce is “safe” or “unsafe.” This gap enables consumer-protection claims premised on nondisclosure, because companies cannot point to compliance with a federal threshold. But it also complicates those claims because plaintiffs must show that the mere presence of these compounds is material to a reasonable consumer without an established safety limit.
The complaint also alleges that certain detected pesticide residues exceeded standards established in other jurisdictions, though it does not identify which ones. That allegation could become a focal point in discovery — particularly if the defendant demonstrates compliance with all applicable U.S. regulatory requirements, which would force the plaintiff to explain why other jurisdictions’ standards should govern a domestic consumer-protection claim.
Companies in the food, agriculture and retail sectors should monitor this case closely. It signals three areas of exposure for companies that market products as safe, high-quality or sustainably produced: whether PFAS-related compounds are present in their products, whether their testing and disclosure practices keep pace with evolving consumer expectations and — for companies that rely on networks of independent growers or suppliers — whether downstream brand owners bear responsibility for pesticide practices they do not directly control.
California Governor Signs PFAS Pesticide Tracking Bill Into Law
On Sept. 27, 2026, California Gov. Gavin Newsom signed A.B. 1603 into law, requiring the Department of Pesticide Regulation to identify registered pesticides that contain PFAS and to report on their use statewide. The law, authored by Assembly Member Nick Schultz, is the final version of a bill that began as a proposed phaseout of PFAS pesticides in California agriculture but was narrowed during the legislative process to focus on disclosure and monitoring.
A.B. 1603 imposes three principal obligations on the Department of Pesticide Regulation. First, by Jan. 1, 2028 (or upon posting of the pesticide use reporting database containing 2026 data, whichever is sooner), and annually thereafter, the department must flag pesticides containing PFAS ingredients in its online database and include PFAS as a category of interest for reporting purposes. Second, on the same schedule, the department must incorporate PFAS pesticide use trends into its annual pesticide use report and other relevant reporting documents. Third, by Jan. 1, 2028, the department must publish a list of all registered pesticides containing PFAS ingredients on its website and submit the list to each county agricultural commissioner, updating it within 60 days of any new PFAS-containing pesticide registration. Notably, the law defines PFAS as chemicals containing at least one fully fluorinated carbon atom, which is broader than EPA’s definition.
The legislature’s findings underscore the scope of the issue: According to a report cited in A.B. 1603, EPA has approved 70 active-ingredient PFAS pesticides, 53 of which are permitted for use in California. A 2025 analysis found that approximately 2.5 million pounds of active-ingredient PFAS pesticides are applied to California crops each year, and that between 2018 and 2023, nearly 15 million pounds were applied across 58 counties. Department of Pesticide Regulation testing in 2023 detected PFAS pesticide traces in 37% of California-grown produce samples. Those samples covered 78 produce types, including strawberries, peaches, lettuce and grapes, and 40 of those types tested positive for PFAS pesticide residues.
Although A.B. 1603 does not ban any PFAS pesticides, the legislature declared its intent to “begin phasing out the use of PFAS pesticides” and to “address the use of PFAS pesticides as a class.” This language signals that the tracking and disclosure framework may serve as a foundation for future restrictions. Companies in the agriculture, food and crop-protection sectors should monitor the department’s implementation closely, as the public disclosure of PFAS pesticide use data — including use trends over time — could generate regulatory, litigation and reputational exposure. For additional information on A.B. 1603’s legislative history, including the original ban proposal and its amendment to a disclosure framework, see the August 2026 Contaminants Compass edition.
EPA’s PFAS Air Emissions Test Method Faces Uncertain Timeline
On Sept. 23, 2026, EPA chemist Stephen Jackson told attendees at the Air & Waste Management Association’s PFAS conference that the agency has not yet released Other Test Method 55 (OTM-55), its method for measuring PFAS precursors and products of incomplete destruction in air emissions, according to Inside EPA. Jackson cited ongoing research and the reorganization of EPA’s Office of Air and Radiation, which eliminated the center that historically published OTMs and left unsettled which office will post the method. He said he is “fairly confident” the draft could be finished by December.
OTM-55 would supplement EPA’s only two existing methods for measuring PFAS in air emissions from stationary sources, OTM-45 and OTM-50. Like those methods, it would not be promulgated through rulemaking, though Jackson noted that OTMs “may be the basis for a promulgated method later on.”
This development is significant because the absence of promulgated test methods appears to be one of the key factors that has kept EPA from regulating PFAS air emissions, even as states press for action, including an August 2024 petition by North Carolina, New Mexico and New Jersey to list four PFAS as hazardous air pollutants — a petition EPA has not yet begun formally reviewing. Companies that operate incineration or other thermal destruction facilities, or that otherwise emit or manage PFAS-containing materials, should monitor OTM-55’s release and its potential bearing on future regulation.