Trends 2026: Moving Past PFAS

2026 could see the United States entering a strange period for the regulation of per- and polyfluoroalkyl substances (PFAS). With a midterm election coming in November 2026 and the administration of President Donald Trump signaling a continued preference for deregulation, the policy landscape is increasingly being shaped by statehouses and courtrooms rather than the White House. At the same time, the Make America Healthy Again (MAHA) movement has muddied the waters, shaping federal attention on food-related PFAS exposures even as other federal regulatory efforts stall.

Meanwhile, businesses, regulators, and advocacy groups are facing growing pressure to reduce or eliminate PFAS use altogether. State-level actions have accelerated, creating a patchwork system of bans, reporting rules, and product restrictions that companies must contend with, even as some industries find ways to avoid regulation. On top of these challenges, there are key judicial decisions expected in 2026 that could redefine the boundaries of PFAS liability, disclosure obligations, and chemical oversight under the Toxic Substances Control Act (TSCA) and other statutes.

To better understand what businesses in the United States can expect for PFAS regulations in 2026, 3E sat down with Lynn L. Bergeson, managing partner of Bergeson & Campbell, P.C., in Washington, D.C.

Q: What are your immediate thoughts on what the next year might look like for PFAS regulation?

Because it's a midterm election cycle at the federal level, I think the rules required to be issued, particularly under TSCA, will continue to move forward. Given the political implications of regulatory initiatives, the presence of the November elections will cast a tall shadow.

I would expect the administration to remain true to its commitment to be deregulatory, but the deregulatory actions have been felt most in areas outside of the Office of Chemical Safety and Pollution Prevention. The initiatives that we've been tracking are around judicial determinations likely to come out in 2026, as well as the PFAS TSCA Section 8(a)(7) reporting rule that should be issued in final [form] in the not-too-distant future, given the need to get on with the reporting cycle. It's going to be remarkably less solicitous of information, given all the exemptions that almost certainly will be found in the amended final rule.

It will be more than just adding back all the TSCA Section 8 exemptions that the Biden administration did not believe it had the authority to add. The Biden EPA [Environmental Protection Agency] looked at Section 8(a)(7) as a freestanding provision that was not integrated into TSCA Section 8(a) in any meaningful way. The Trump administration sees things differently. It has some interesting implications for the interpretation of the regulation of chemicals and articles writ large.

With PFAS regulation specifically, I don't see much activity at the federal level. Except for the other issues that were initiated previously, either under Trump's first administration or under Biden's administration, I'm not sure there will be much activity regarding PFAS. I think the wild card might be the Make America Healthy Again (MAHA) agenda. To the extent that the MAHA Commission has continued to express concern with PFAS contamination and other substances in food applications, the FDA [U.S. Food and Drug Administration] may be more active in 2026.

There may be a further ratcheting down of regulatory limits in that context and in the generally recognized as safe (GRAS) area. I think the Trump administration is going to remain true to its deregulatory commitment and be mindful about the implications of an important midterm election.

Q: Speaking of the deregulatory commitment, do you see any federal government push to try and preempt any state regulations on PFAS?

I think one of the pillars of [EPA Administrator Lee] Zeldin's administration, and the Trump administration as a whole, is cooperative federalism. The administration seeks to work with state and regional partners. Given the influence of the MAHA Commission and the public's concern with PFAS, I guess I do not see a political or legal pathway for preemption.

The states are far along with PFAS initiatives involving RCRA [Resource Conservation and Recovery Act] (and state analog programs), TRI [Toxics Release Inventory], CERCLA [Comprehensive Environmental Response, Compensation and Liability Act], and water initiatives. Illinois, Maine, Minnesota, and New Mexico have enacted regulatory programs that already ban PFAS in certain consumer products, and other states including Alaska, California, Colorado, Connecticut, Hawaii, Maryland, New Hampshire, New Jersey, New York, Oregon, Rhode Island, and Vermont are working on other initiatives. This train left the station, and manufacturers and others producing products that are reliant upon PFAS for some functionality or have PFAS intentionally included in their product composition are well along in removing those PFAS or reformulating products to accommodate these bans and avoid having to report the presence of PFAS in their products.

If we were having this conversation eight years ago, maybe the federal government would be doing something to slow these initiatives down. There are too many restrictions that are out-of-the-box and implemented and now having commercial consequences for the federal government to say, “Never mind, here's your new federally preemptive PFAS legislation.” It would never get through Congress given the deep divisions apparent there. There might be some in the business community that would prefer a more coherent and less inconsistent approach to PFAS regulation, but at the end of the day, I think a lot of people are exiting the market or going for a designation of Currently Unavoidable Use (CUU).

Even if there were a legal or regulatory pathway, the threat of tort liability and multidistrict litigation for PFAS environmental contamination, water, soil, and substrate contamination makes the imperative for a less risky tort future too demanding to ignore. Senator Shelley Moore Capito [chairman of the U.S. Senate Committee on Environment and Public Works] is having a hard time achieving consensus on passive receiver legislation. We may see hearings scheduled this spring on passive receiver legislation, but to my knowledge, bipartisan discussions haven’t even begun on that. The closer we get to November, the less likely legislative action is expected to occur.

Q: Would you say that a trend you see coming up in 2026 and moving forward is that businesses will try to move away from PFAS as much as possible?

Without question.

Q: On that note, some industries are pushing back on PFAS regulations, notably the cookware industry, to the point where they are getting carve-outs in some bills and applying pressure to have others vetoed. How have they had success where other industries haven't?

That might be the exception that makes the rule. There was pushback in France, too. In 2024, the French cookware industry took to the streets against the French legislation banning cookware. Here in the United States, it's become the canary in the coal mine for fluoropolymers writ large, which are seeing some carve-outs in areas beyond California. There's a narrative to be made and an affordability issue to be optimized; that is a particularly important issue politically right now. That was a major part of the message in California, where Governor [Gavin] Newsom vetoed the legislation because alternatives to Teflon cookware were thought to be too expensive.

There is also the science argument that fluoropolymers are fundamentally and intrinsically different and don't offer the same hazards that other PFAS do. Whether the cookware industry is more politically organized or because it is an easy issue that resonates with consumers … the industry is making headway and getting carveouts. I think that if you can make the science case that a particular strain of PFAS simply does not pose the risks that are driving the restrictions and the notification requirements, and as a result they should be treated differently, decision-makers can be persuaded.

Overall, the cookware industry's argument that fluoropolymers are different is a bit of an anomaly, but one that could bode well for other product categories that rely entirely upon PFAS that don't present the types of risks typically associated with PFAS.

Q: What are some of the consequences of treating these PFAS differently from other PFAS?

If you take the cookware industry's argument to its logical extreme, you're back to the PFAS-by-PFAS kind of analysis, which the government has neither the time nor the political will to entertain. The anomaly about PFAS is that it's an enormous class of chemicals, and those of us that are deep into TSCA recognize that every chemical structure is its own entity. The problem with PFAS is that given their utility and their diversity, attempting to approach the chemicals on a one-off basis, or even on a more speciated category basis as the testing authorities are offering, is a very slow way to go about assessing chemicals with a view toward limiting their commercial vitality.

Unfortunately, PFAS has become a four-letter word and is thought to be unsafe at any speed. As a lawyer and a TSCA aficionado, I chafe at that because there are a lot of PFAS out there that are efficacious and fit for purpose without posing unreasonable risk, but unfortunately, they are painted with the same PFAS brush as the most notorious members of their class. Entities continuing to use PFAS do so at a considerable risk and must take steps to prove doing so poses no danger. It's not fair, but it's a fact of life.

Q: Moving back to the states, there has been a significant jump in introduced legislation since we last talked. However, only a fraction of them have been adopted. Is this normal with PFAS regulation?

Some states are atypical. Minnesota is one where the state is home to a significant former PFAS manufacturer. Amara’s Law, the Minnesota state law enacted in 2023 that bans certain consumer products that contain intentionally added PFAS, among other restrictions, puts the spotlight on PFAS as a uniquely bad actor. The number of initiatives enabled in Minnesota concern industry advocates given their breadth and likely commercial impact. The state administrative process is quite fluid, and the pace of proposed legislation in the state, where many are introduced but few are implemented, invites a great deal of distraction and advocacy. (Author's note: Minnesota has introduced 31 PFAS legislative initiatives but only adopted two.)

The process is also not as transparent as one would like, certainly unless you have a team of state lobbyists monitoring changes who are able to report in real time. But for those of us that track this, we work closely with trade associations. That said, there remains a good deal of opaqueness in the process and a lot of moving parts, but not a lot of opportunity to comment.

Also, every region has different PFAS issues. Some of the more rural areas are chiefly concerned about PFAS contamination from water sources or soil contamination and its impact on food. Concerns vary widely and whatever the exigency of the day is will drive diverse efforts to limit PFAS contamination.

Q: With these new laws, have you seen any attempts to harmonize PFAS regulations across states to make things easier for businesses?

I don't see an imperative to make the laws more consistent across state lines. I don't think that's foremost in a state legislator's mind. I think regional or state-specific conditions and constituent concerns are far more relevant. There are efforts to have certain “clearing house” data shared by multiple states, which seems sensible. These efforts are driven more by a desire to economize state resources than trying to make life easier for the commercial sector.

There are certain trends, like product bans, popular in the states with which we are familiar. Maine, Minnesota, New Mexico, and other states have similar product categories that we see populated in state PFAS restrictions. It's likely a matter of time before every state has a requirement to report PFAS in products. I think a lot of states believe that entities that are responsible for including PFAS in their products need to be identified and allow the court of public opinion to facilitate a hasty retreat from the market of PFAS intentionally added to products. The outing process, through reporting, labeling, and product bans, is an effective tool. States are going to be driven by whatever approach makes the most sense for their residents, their administrative processes, and their bandwidth for collecting data and enforcing prohibitions more than seeking to make things easier on businesses.

There have also been issues with states changing the rules. Maine has demonstrated a remarkable capacity to try to get it right and should be commended for its efforts. The fits and starts, the one step forward two steps back routine, can be disruptive, however.

Q: What other things have you seen that are making compliance with regulations difficult?

The bewildering MAHA impact can't be underestimated. President Trump's base is not entirely consistent when it comes to chemical contamination. With respect to food - food additives, dyes, colorants of any sort, pesticides, and other issues that have been traditionally more partisan - the line is blurred now because of MAHA. Nothing is clear or predictable.

Q: You mentioned earlier that there were some judicial decisions coming up in 2026 that could affect PFAS regulations. What are you seeing on the legal front for next year?

The ongoing litigation of the Safe Drinking Water Act standards will likely be resolved in 2026, and litigation over the nine new PFAS is set to be reportable in March 2026 under EPCRA [Emergency Planning and Community Right-to-Know Act]. The Center for Environmental Health and Public Employees for Environmental Responsibility (PEER) also filed suit against the EPA in the U.S. Court of Appeals for the D.C. Circuit. I would also expect that once the final TSCA Section 8(a)(7) PFAS reporting rule is issued that it too could be the subject of judicial review. I'm not certain on what grounds the appeal would be based on or its likelihood of success. I thought the proposed rule was well written and well supported, and the almost $900 million cost burden would be reduced by 80% by the inclusion of the proposed exemptions from reporting. Perhaps precisely for this reason, and the current administration's reinterpretation of the rule as noted above, there may be litigation in our future.

Q: Any concluding thoughts on what businesses can do to prepare for PFAS in 2026?

PFAS will continue to generate a good deal of federal and state legislative and regulatory initiatives and litigation. I don’t see it going away anytime soon. I think people are starting to think seriously about CUU opportunities for those PFAS that are believed to be irreplaceable and interested stakeholders need an additional five to seven years before a new technology is found to replace it. Those are legitimate concerns, but sometimes businesses live in the moment and to think that far into the future is not top of mind. It can be hard to justify the cost of preparing a compelling CUU application, especially if it is unclear if such requests will be approved.

This series of Trends 2026 articles examines how the convergence of manufacturing transformation, market volatility, and product stewardship evolution with chemical risk management and compliance has created major opportunities and challenges for companies in the chemical sector in 2026 and beyond.