A Warning by Any Other Name? Court Blocks New Mexico PFAS Labeling Rule

On September 16, in American Chemistry Council v. Kenney, the US District Court for the District of New Mexico preliminarily enjoined the PFAS labeling regulation for the pendency of the litigation, finding that industry challengers were likely to succeed on their First Amendment claim.

Notably, the court rejected industry’s arguments that the required PFAS disclosure was non-factual or controversial. Instead, it found that New Mexico failed to demonstrate a “reasonable fit” between the disclosure and the health and environmental objectives the state said it was intended to advance. That reasoning could have implications beyond PFAS as states increasingly use labeling and disclosure requirements as tools of chemical regulation.

What Did New Mexico Require?

New Mexico’s 2025 PFAS Protection Act established several requirements for products containing intentionally added PFAS, including phased product prohibitions, manufacturer reporting, and labeling authority. Under regulations finalized in May 2026, covered products containing intentionally added PFAS generally were required to display an outline of an Erlenmeyer flask containing the letters “PFAS.” For most products, the symbol had to be visible before sale; different requirements applied to certain “complex durable goods.”

The rule included limited exemptions and waiver provisions, including mechanisms addressing products subject to another state’s PFAS labeling requirements and certain products exempt from New Mexico’s product bans.

How New Mexico’s Defense Became the Problem

The government can require businesses to provide factual, noncontroversial information, but there must be a reasonable connection between the required disclosure and the government’s stated purpose.

The industry challengers argued that the label failed the threshold requirements because the term “PFAS” encompasses thousands of substances with different properties and risks, and because consumers would interpret the flask symbol as a hazard warning. The court rejected both arguments. It concluded that the label communicates a factual proposition — that a product contains a substance meeting New Mexico’s statutory definition of PFAS — and declined to treat the Erlenmeyer flask symbol as inflammatory or a warning.

That victory ultimately created a different problem for the state. To establish that the disclosure was factual and noncontroversial, New Mexico emphasized that the symbol was simply a “consumer awareness label,” not a warning about PFAS risks. But the state simultaneously justified the mandate as advancing public health and environmental protection. The court found those positions difficult to reconcile.

The court was also persuaded by evidence that, outside the litigation, New Mexico had itself treated the label as a warning. The New Mexico Environment Department’s own website characterized the label as a “warning,” advised consumers to “[l]ook for warnings about PFAS in products,” and separately warned that “[c]ertain PFAS are associated with negative human health effects such as thyroid disease, cancer, liver disease, birth defects, and increased risk of miscarriage.” 

The court also drew on Int’l Dairy Foods Ass’n v. Amestoy, which cautioned that generalized consumer curiosity cannot, by itself, justify compelled product disclosures. In short, the court concluded that by defending the PFAS symbol as a consumer-awareness measure rather than a warning, New Mexico had “destroy[ed] the connection” between the compelled disclosure and its asserted regulatory purpose.

What This Means for Industry

The injunction blocks New Mexico’s labeling regulation during the pendency of the lawsuit. However, it does not invalidate the other requirements of New Mexico’s PFAS Protection Act and implementing regulations, leaving its staggered PFAS product bans and manufacturer reporting requirements untouched. 

The court expressly declined to decide whether a differently designed warning label — one that communicates public health or environmental information — could survive First Amendment scrutiny. Indeed, it acknowledged that protecting public health and the environment are legitimate government interests that can support disclosure requirements, though the inherent conflict between messaging that warns consumers and messaging that remains factual and noncontroversial is one states will need to navigate. 

The decision could nevertheless matter beyond New Mexico. States increasingly rely on labeling, reporting, and other disclosure mandates as part of their regulation of PFAS and other chemicals. The reasoning here suggests that companies evaluating those requirements should ask not only whether the required statement is accurate, but also what governmental objective the disclosure is supposed to serve and whether the mandated message actually advances that objective.

Practical Takeaways

Companies affected by New Mexico’s rule should consider:

• Pausing implementation of New Mexico-specific labeling changes until the litigation is resolved.

• Preserving compliance work already completed, in case the injunction is lifted or reversed.

• Continuing compliance efforts for other portions of New Mexico’s PFAS law, including manufacturer reporting requirements and phased product sales restrictions, which were not enjoined.

• Reviewing other state chemical labeling requirements separately from product bans, particularly where similar First Amendment issues may arise, while recognizing that the analysis will depend on the language, purpose, and regulatory record supporting each requirement.

• Monitoring the litigation closely. The ruling is a preliminary injunction, not a final decision on the merits, and its reasoning could be tested on appeal or addressed through changes to the regulation. 

Looking Ahead

The New Mexico decision does not establish a broad constitutional barrier to state chemical labeling requirements. Instead, it highlights that even when a compelled disclosure is factual and noncontroversial, regulators must still demonstrate a sufficient connection between what companies are required to say and the governmental objective the disclosure is intended to advance.

State PFAS labeling and disclosure requirements continue to develop rapidly. If you have questions about what the New Mexico decision means for your products or how it may affect your broader state chemical compliance strategy, please contact a member of ArentFox Schiff’s Environmental group.