Christmas came early Sept. 16, when the U.S. District Court for the District of New Mexico issued an injunction enjoining the requirement to label consumer products containing intentionally added per- and polyfluoroalkyl substances (PFAS) made after Jan. 1, 2027, and offered for sale in New Mexico. The case is American Chemistry Council v. Kenney, No. 1:26-cv-02130. Why this constitutional challenge matters and what it means are discussed below.

Background

The industry coalition includes the American Chemistry Council, Alliance for Automotive Innovation, American Coatings Association, Association of Home Appliance Manufacturers, National Association of Manufacturers, National Electrical Manufacturers Association, National Federation of Independent Business, New Mexico Retail Association and Power Tool Institute. 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 requested preliminary and permanent injunctive relief enjoining New Mexico from enforcing the final rule's labeling mandate against the plaintiffs and their members.

After finding that the final rule's labeling requirement "is purely factual and noncontroversial," the court examined whether there was a reasonable fit between the means the final rule uses and New Mexico's interest. The plaintiffs maintained that the final rule is not reasonably related to a substantial state interest, "asserting that Zauderer [a well-recognized case setting the legal standard] allows government-mandated speech to 'ensure that consumers received accurate information related to their transactions, and nothing more than that.'"

New Mexico argued that it has interests in protecting consumer health and safety, protecting the environment, and providing relevant information about the manufacturing process to consumers. Underpinning this dispute "is the Parties' running disagreement as to whether the Regulation requiring the PFAS label is a warning label, as Plaintiffs suggest, or if it is a consumer awareness label, as Defendants suggest." Noting the defendants' repeated disavowals that the PFAS label constitutes a warning, the court stated: "Bluntly, Defendants' characterizations of the innocuous nature of the label suggests the state's interest is akin to mere consumer curiosity that the AMI court warned could not stand."

According to the court, characterization of the label as a "consumer awareness label" rather than a "warning label" "destroy[s] the connection between the purpose of the required disclosure — to promote consumer and environmental health — and the means employed to realize that purpose, which in other instances is achieved with a warning." If the required label is a consumer awareness label, the court asked, how is New Mexico's "purported state interest in protecting consumer and environmental health served and how are consumers to know that it may impact their health or the environment if the required label provides no such information?" The court concluded that the plaintiffs were likely to prevail on the merits.

Discussion

The case is an important win for industry in resisting constitutionally unlawful labeling requirements that do not serve legitimate state interests. Prior to the litigation, affected industries were understandably struggling to understand the goal of the labeling provisions and how to comply in a timely manner with their extensive and costly reach. Constitutionally compelled business speech must meet well-established criteria, and the federal court rightly concluded that there was no nexus between the New Mexico labeling provisions and protecting consumer and environmental health, the nominal purpose of the product labeling requirements.

This case is one of a growing number of challenges to state laws on First Amendment and Commerce Clause grounds. Several pending legal challenges question the constitutionality of state extended producer responsibility provisions, and in California, a challenge to the state's Truth in Recycling law is pending. In the case of the latter, the court enjoined the law's enactment. As for extended producer responsibility, in Oregon, the court denied injunctive relief, and industry is appealing in National Association of Wholesaler-Distributors v. Feldon, No. 3:25-cv-01334.

As states experiment with bold new initiatives to address a wide variety of waste and related environmental challenges, expect to see more constitutional challenges like those noted above. Their resolution will greatly impact the scope and scale of state programs for decades to come.