Challenges to New Mexico’s PFAS Rule Filed in State and Federal Court

The New Mexico Environment Department (NMED) published in the May 5, 2026, issue of the New Mexico Register a final rule on per- and polyfluoroalkyl substances (PFAS) in consumer products. On May 22, 2026, Diamond Vogel, Inc., 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 is challenging the final rule’s labeling and fee provisions. On July 1, 2026, a coalition of industry associations filed suit in the U.S. District Court for the District of New Mexico ( American Chemistry Council (ACC) v. Kenney , Case No. 1:26-cv-02130). The coalition argues that the final rule is unconstitutional and that its enforcement should be permanently enjoined. Background On April 8, 2025, New Mexico Governor Michelle Lujan Grisham (D) signed the Per- and Poly-Fluoroalkyl Substances (PFAS) Protection Act (HB 212, codified in Chapter 74, Article 15 of the New Mexico Statutes Annotated). Like Minnesota and Maine, New Mexico will begin phasing out certain consumer products containing intentionally added PFAS, defining PFAS as “a substance in a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” In 2032 , New Mexico will prohibit products containing intentionally added PFAS unless the use of the PFAS is designated as a currently unavoidable use (CUU). Similarly to Minnesota, New Mexico will also require manufacturers of products containing intentionally added PFAS to report certain information. New Mexico exempts several products, however, from both the prohibition and reporting requirements. Most notably, the exemptions include products containing certain fluoropolymers. Under the statute, the New Mexico Environmental Improvement Board (NMEIB) “may” adopt rules to carry out the statute, “including requiring the labeling of products in English and Spanish.” More information on New Mexico’s statute is available in our April 11, 2025, memorandum . NMED announced on October 8, 2025, that it petitioned NMEIB to adopt a proposed rule to implement the PFAS Protection Act. According to NMED’s press release, the proposed rule would “implement the full scope of the PFAS Protection Act, including phasing out and prohibition on the sale of consumer products containing intentionally added PFAS, establishing consumer-facing labels for products which contain intentionally added PFAS, and the reporting requirements for the manufacturers of such products.” More information on the proposed rule is available in our October 15, 2025, memorandum . Following an administrative hearing , NMEIB concluded its deliberations on March 23, 2026, and approved NMED’s proposed rule. The NMEIB Chair signed a Final Order and Statement of Reasons on April 17, 2026, regarding the adoption of the final rule. The final rule includes prohibitions for certain consumer products in 2027 and 2028 ; reporting due January 1, 2027 ; a labeling requirement for products manufactured after January 1, 2027 ; and a 2032 prohibition on products containing intentionally added PFAS that are not exempt or have a CUU determination. The final rule will be effective July 1, 2026 . Challenge in the New Mexico Court of Appeals According to the June 22, 2026, docketing statement, Diamond Vogel claims that New Mexico’s May 5, 2026, final rule’s labeling requirements violate the First Amendment protections of the U.S. and New Mexico constitutions, exceed the NMEIB’s authority under the state’s 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. NMED has intervened on behalf of NMEIB in the litigation. NMED will compile the administrative record from the rulemaking process, and this will form the basis for judicial review. Challenge in the U.S. District Court for the District of New Mexico The industry coalition includes the American Chemistry Council (ACC), Alliance for Automotive Innovation (AAI), American Coatings Association (ACA), Association of Home Appliance Manufacturers (AHAM), National Association of Manufacturers (NAM), National Electrical Manufacturers Association (NEMA), National Federation of Independent Business, Inc. (NFIB), New Mexico Retail Association (NMRA), and Power Tool Institute (PTI). According to the complaint , the labeling requirement violates the First Amendment by compelling manufacturers to label products with an Erlenmeyer flask pictograph, which “is not purely factual and uncontroversial.” The labeling requirement also violates the dormant Commerce Clause by regulating manufacturers wholly outside of New Mexico based solely on the premise that products sold to third parties, in transactions with no nexus to New Mexico, may ultimately find their way to New Mexico, as well as by imposing a burden on interstate commerce that “is clearly excessive in relation to the putative local benefits.” The Plaintiffs request preliminary and permanent injunctive relief enjoining New Mexico from enforcing the final rule’s labeling mandate against Plaintiffs and their members. Commentary As we reported , NMED revised its October 2025 proposed rule multiple times before NMEIB’s hearing began on February 23, 2026, with the most significant revisions being made to the proposed labeling requirement. While the labeling provision in the final rule is less onerous than the one in the October 2025 proposed rule, it still requires labeling on almost all products containing intentionally added PFAS manufactured after January 1, 2027 , less than six months from now. NMED initially proposed that labels include the statement “Caution: Associated with environmental impacts and health effects such as cancer,” making it hard to accept that the labeling requirement in the final rule is intended to be purely factual. Just as NMEIB’s hearing was unexpectedly compelling, these suits have the potential for drama. We will be staying tuned and reporting developments.