New Mexico Environment Department Outlines Actions for 2027 Legislative Session, Including Sunsetting Exemptions
On November 5, 2026, the New Mexico Environment Department (NMED) provided an update to the New Mexico legislature’s Radioactive and Hazardous Materials Committee on the status of NMED’s report under House Joint Memorial (HJM) 3. HJM 3 requests that the New Mexico Environmental Improvement Board (EIB) provide a report to the legislature on the implementation of the Per- and Polyfluoroalkyl Substances (PFAS) Protection Act that addresses the efficacy of rules promulgated by EIB pursuant to the Act. HJM 3 also asks that NMED provide a report to the legislature on the public health, environmental, and economic risks of the exemptions codified in the Act. HJM 3 states that NMED’s report should also “provide recommendations to the legislature regarding whether such exemptions, such as the exemption for fluoropolymers, should be continued, modified or removed.” The actions listed for the 2027 legislation session on NMED’s slides include “[s]trengthen[ing the] PFAS Protection Act by sunsetting exemptions.” As reported in our October 20, 2026, blog item, NMED has reopened the public comment portal for its HJM 3 report and will accept comments until December 31, 2026.
Key Takeaways:
- The exemptions and prohibition deadlines in New Mexico’s PFAS Protection Act and May 2026 final rule are not set in stone and are open to amendment.
- NMED has already presented suggestions for legislative action in 2027, including sunsetting exemptions in the PFAS Protection Act and May 2026 final rule.
- Stakeholders should ensure that NMED has peer reviewed studies demonstrating the safety of the exemptions and submitting available information by December 31, 2026.
Exemptions under the PFAS Protection Act and Implementing Rule
New Mexico’s April 2025 PFAS Protection Act exempts several products from both the prohibition and reporting requirements in the Act. The exemptions include:
- A product for which federal law governs the presence of a PFAS in the product in a manner that preempts state authority;
- Used products offered for sale or resale;
- Medical devices or drugs and the packaging of the medical devices or drugs that are regulated by the U.S. Food and Drug Administration (FDA), including prosthetic and orthotic devices;
- Cooling, heating, ventilation, air conditioning, or refrigeration equipment that contains intentionally added PFAS or refrigerants listed as acceptable, acceptable subject to use conditions, or acceptable to narrowed use limits by the U.S. Environmental Protection Agency (EPA) pursuant to the Significant New Alternatives Policy (SNAP) Program, 40 C.F.R. Part 82, Subpart G and sold, offered for sale, or distributed for sale for the use for which the refrigerant is listed pursuant to that program;
- 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:
- FDA;
- The U.S. Department of Agriculture (USDA) pursuant to the federal Virus-Serum-Toxin Act; or
- EPA pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), except that any such products approved by EPA pursuant to that law for aerial and land application are not exempt from this section;
- FDA;
- A product developed or manufactured for the purpose of public health or environmental or water quality testing;
- A motor vehicle or motor vehicle equipment regulated under a federal motor vehicle safety standard, as defined in 49 U.S.C. Section 30102(a)(10), except that the exemption does not apply to any textile article or refrigerant that is included in or as a component part of such products;
- 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;
- A watercraft, an aircraft, a lighter-than-air aircraft, or a seaplane;
- A semiconductor, including semiconductors incorporated in electronic equipment, and materials used in the manufacture of semiconductors;
- Non-consumer electronics and non-consumer laboratory equipment not ordinarily used for personal, family, or household purposes;
- A product that contains intentionally added PFAS with uses that are currently listed as acceptable, acceptable subject to use conditions, or acceptable subject to narrowed use limits in EPA’s rules under the SNAP Program; provided that the product contains PFAS that are being used as substitutes for ozone-depleting substances under the conditions specified in the rules;
- A product used for the generation, distribution, or storage of electricity;
- Equipment directly used in the manufacture or development of the products listed above;
- A product for which the EIB has adopted a rule providing that the use of PFAS in that product is a currently unavoidable use (CUU); or
- 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.
On May 5, 2026, EIB issued a final rule implementing the Act. It includes the exemptions above, as well as a “pesticide that is regulated by or under the jurisdiction of [FIFRA].”
NMED’s Presentation to the Legislative Committee Includes Actions for 2027 Legislative Session
During the presentation to the legislature’s Radioactive and Hazardous Materials Committee, James C. Kenney, NMED Secretary, noted the preliminary injunction enjoining New Mexico’s labeling requirement. In light of the preliminary injunction, Kenney suggested that the legislature may wish to consider amending the PFAS Protection Act to address some of the challenges brought on by the lawsuit. NMED’s slides include the following legislative actions for the 2027 session:
- Require reporting for exempt products.
- Strengthen PFAS Protection Act by accelerating the phaseout schedule.
- Strengthen PFAS Protection Act by sunsetting exemptions.
- Explicitly state NMED can assess and collect fees.
The PFAS Protection Act and the May 2026 final rule exempt certain products from the reporting requirements. According to Kenney, now that exempt products do not have to be labeled, there will be unlabeled products on the shelves that are exempt from reporting.
Under the Act and the final rule, beginning January 1, 2027, sale of the following products containing intentionally added PFAS will be banned: cookware, food packaging, dental floss, juvenile products, and firefighting foam. Beginning January 1, 2028, a manufacturer may not sell the following products containing intentionally added PFAS: carpets or rugs, cleaning products, cosmetics, fabric treatments, feminine hygiene products, textiles, textile furnishings, ski wax, and upholstered furniture. Beginning January 1, 2032, products containing intentionally added PFAS that are not exempt under New Mexico’s statute will be banned unless the use of the PFAS is determined to be a CUU. Kenney suggested that without labels educating consumers, the legislature may wish to accelerate the 2032 phaseout.
Under HJM 3, the legislature requested that NMED, in consultation with other state agencies, develop a report on the public health, environmental, and economic risks of the exemptions codified in the PFAS Protection Act and provide recommendations “regarding whether such exemptions, such as the exemption for fluoropolymers, should be continued, modified or removed.” According to NMED’s slides, it “is conducting primary literature reviews in consult with other state agencies to provide the state of the science of the public health, environmental, and economic risks associated with the exemptions in the PFAS Protection Act.” NMED also continues to hold meetings with stakeholders. During the presentation, Kenney acknowledged that NMED was asked by the legislature to study the exemptions but stated that the legislature may want to sunset the exemptions if industry is unwilling to label its products.
The final suggested action, explicitly stating that NMED can assess and collect fees, is in response to Diamond Vogel, Inc.’s challenge to the May 2026 final rule. As reported in our July 8, 2026, memorandum, on May 22, 2026, Diamond Vogel, a paint manufacturer, filed a Notice of Appeal in the New Mexico Court of Appeals (Diamond Vogel v. New Mexico, Ct. App. No. A-1-CA-43483). Diamond Vogel claims that the final rule’s labeling requirements violate the First Amendment protections of the U.S. and New Mexico constitutions, exceed EIB’s authority under the PFAS Protection Act, are arbitrary and capricious, and are unsupported by substantial evidence in the record. Diamond Vogel also maintains that the final rule’s provisions imposing fees exceed NMEIB’s authority.
Business Implications and Outlook
There is growing evidence that certain PFAS, particularly perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), pose certain health risks. Just last week, on November 5, 2026, the National Institutes of Health (NIH) announced that women with higher levels of PFOA and PFOS “were more likely to develop estrogen receptor-negative, or ER-negative, breast cancer.” Yet not all PFAS have the same risk profile as PFOA and PFOS, and characterizing the class of thousands of PFAS based on PFOA and PFOS ignores the scientific data.
NMED’s suggestion that the PFAS Protection Act be strengthened by sunsetting the exemptions is premature. According to the slides, “NMED is conducting primary literature reviews in consult with other state agencies to provide the state of the science of the public health, environmental, and economic risks associated with the exemptions in the PFAS Protection Act.” The slides note that “[r]ecommendations under development are guided by scientific evidence and whether viable alternatives exist.” If NMED is already inclined to advocate that the PFAS Protection Act be amended to remove the exemptions, then it is critical that industry provide information supporting the safety of PFAS used in products and whether there are any viable alternatives.
Under New Mexico’s May 2026 rule, CUU applications for the 2032 prohibition can be submitted beginning in 2027. While industry is evaluating whether PFAS can be removed from products before 2032 and if a CUU is necessary, Kenney is urging the legislature to accelerate the phaseout schedule. Manufacturers likely already have whiplash from the speed with which NMED announced that it would propose a labeling requirement (September 2025), EIB adopted a final rule that includes a labeling requirement (March 2026), and the final rule was published (May 2026). The PFAS Protection Act, as enacted by the legislature in April 2025, exempts certain products from reporting. The Act does not include a labeling requirement. Instead, there is only one reference to a labeling requirement. Under the Act, EIB “may” “adopt rules to carry out the provisions of the Per- and Poly-Fluoroalkyl Substances Protection Act, including requiring the labeling of products in English and Spanish.” The legislature chose to enact a statute that exempts certain products from reporting, that does not include a labeling requirement, and that has a 2032 prohibition date that is aligned with Maine and Minnesota. Yet suddenly these provisions are failing consumers, who will be unaware that unlabeled products exempt from reporting contain PFAS. Manufacturers should brace themselves for a bumpy 2027.
Resources
Below are links to several memoranda providing more information on the PFAS requirements in New Mexico. These are only highlights, and details regarding other aspects of New Mexico’s requirements are available on our website.
- The Complex Road to PFAS Alternatives — A Conversation with Martial J. Pabon, Ph.D. (November 12, 2026)
- Federal Court Grants Plaintiffs’ Motion for a Preliminary Injunction in Challenge to New Mexico’s PFAS Labeling Requirement (September 16, 2026);
- New Mexico’s Final PFAS Rule Includes January 1, 2027, Labeling Requirement (May 4, 2026); and