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California has several new consumer product regulations for PFAS coming into effect in 2024-2025 that are the strictest in the country

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California’s numerical limits on fluorine content in products create distinct compliance challenges

Proposition 65 and other private attorney general actions are likely to continue to drive PFAS litigation in the Golden State

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In the past 10 years, several U.S. states have been at the forefront of environmental regulation of per- and polyfluoroalkyl substances (PFAS), including Maine, New Hampshire, Vermont and New Jersey. But in the past few years, California has emerged with some of the strictest consumer product regulations of PFAS in the country. Some of the state legislature’s most ambitious measures, including a universal PFAS reporting law (AB 2247), never made it out of Sacramento. But other PFAS regulations, including labeling requirements on cookware and a ban on PFAS in food packaging, have already gone into effect. Still others, including new rules limiting PFAS in apparel, may have a significant impact on the textile and clothing industries starting next year.

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As only one example of why California’s PFAS regulations pose a significant regulatory burden, many states have targeted “intentionally added” PFAS in consumer products, or PFAS that are purposely added to products for “a functional or technical effect” (for example, water or grease resistance). But California is one of only a few states that have set specific limits on the amount of PFAS (measured as total organic fluorine) that may be present in consumer products going forward. These express limits on the amount of PFAS present in products may create an obligation for companies to continuously monitor and audit production processes, product suppliers and distribution chains for fear that PFAS may be unknowingly added or cross-contaminate products. Consumer product manufacturers, distributors and retailers may devote significant efforts to keep PFAS out of supply chains and off store shelves – yet still fall short of compliance under these new California laws.

Cookware and Food Packaging

Assembly Bill 1200 (AB 1200) requires labeling of chemicals in cookware, including PFAS, on a designated list created by the state by January 1, 2024. <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB1200" target="_blank" rel="noreferrer noopener">Bill Text - AB-1200 Plant-based food packaging: cookware: hazardous chemicals.</a> The law incorporates an extremely broad definition of PFAS that covers any PFAS (including fluoropolymers) containing one fully fluorinated carbon atom. The law also prohibits the use of advertising that cookware is “PFAS-free” if the cookware contains PFAS. In late 2023, the California attorney general stated that his office may bring enforcement actions for failure to comply with AB 1200 – seeking civil penalties, restitution, injunctive relief and criminal liability for violations of the law. <a href="https://oag.ca.gov/system/files/attachments/press-docs/AB1200%20Enforcement%20Advisory%20%281%29.pdf" target="_blank" rel="noreferrer noopener">AB1200 Enforcement Advisory (1).pdf (ca.gov)</a>.

California’s bar on the use of PFAS in any plant fiber-based food packaging (including paper and cardboard) under AB 1200 went into effect on January 1, 2023. The ban applies to any “intentionally added” PFAS as well as any PFAS in excess of 100 parts per million (ppm).

Assembly Bill 1817 bans the manufacture, distribution or sale of any new “textile articles” that contain “regulated PFAS” by January 1, 2025. <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB1817" target="_blank" rel="noreferrer noopener">Bill Text - AB-1817 Product safety: textile articles: perfluoroalkyl and polyfluoroalkyl substances (PFAS). (ca.gov)</a>. Notably, the regulation applies to “intentionally added PFAS” in textiles as well as any product or product component that contains more than 100 ppm of total organic fluorine (starting January 1, 2025) or more than 50 ppm of total organic fluorine (starting January 1, 2027). Again, like other California regulations, PFAS is broadly defined to include any chemical containing one fully fluorinated carbon atom. The law defines “textile articles” as “textile goods of a type customarily and ordinarily used in households and businesses” including, but not limited to, “apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths.” The bill delays application of the ban on “apparel for severe wet conditions” until January 1, 2028. The bill also allows retailers and distributors to rely in good faith on certificates of compliance provided by manufacturers.

Proposition 65 requires that companies provide a “clear and reasonable warning” prior to exposing a person to a chemical in a consumer product “known to the state to cause cancer or reproductive toxicity.” The law does not ban or otherwise regulate the sale of products in California. Instead, it simply requires a warning when necessary.

Proposition 65 warnings currently apply to three PFAS chemicals. In November 2017, California added perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) to the Proposition 65 chemical list as chemicals known to cause reproductive toxicity. These listings were later revised to include these chemicals as known carcinogens. A third PFAS chemical, perfluorononanoic acid (PFNA), was added to the Proposition 65 chemical list on December 31, 2021, for reproductive harm.

Since these chemicals were added to the Proposition 65 chemical list, serial “citizen enforcers” have noticed upward of 100 violations directed at companies selling consumer products into California related to PFAS exposure, with 74 of these actions occurring in the past year alone. Consumer products recently targeted by these firms include personal care items, clothing and textiles, and dietary supplements. The addition of PFAS to Proposition 65 has proved worthwhile for plaintiffs’ firms, with some settlements exceeding the low six figures. &nbsp;

California’s efforts to include additional PFAS chemicals under Proposition 65 do not appear to be slowing down. Indeed, California previously considered perfluorodecanoic acid (PFDA), perfluorohexanesulfonic acid (PFHxS) and perfluoroundecanoic acid (PFUnDA) for listing as recently as December 2021. Though these chemicals have yet to be added to the Proposition 65 chemical list, it appears that California will continue to closely scrutinize PFAS for inclusion in the coming years.

Assembly Bill 652 bars the manufacture, distribution and sale of any new juvenile product containing PFAS effective July 1, 2023. <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB652" target="_blank" rel="noreferrer noopener">Bill Text - AB-652 Product safety: juvenile products: chemicals: perfluoroalkyl and polyfluoroalkyl substances.</a> Like AB 1200, the law uses one of the broadest possible definitions of PFAS (any chemical containing one fully fluorinated carbon atom). The ban covers “intentionally added PFAS” or PFAS above 100 ppm in the product. A “juvenile product” is broadly defined as:

A product designed for use by infants and children under 12 years of age, including, but not limited to, a baby or toddler foam pillow, bassinet, bedside sleeper, booster seat, changing pad, child restraint system for use in motor vehicles and aircraft, co-sleeper, crib mattress, floor playmat, highchair, highchair pad, infant bouncer, infant carrier, infant seat, infant sleep positioner, infant swing, infant travel bed, infant walker, nap cot, nursing pad, nursing pillow, playmat, playpen, play yard, polyurethane foam mat, pad, or pillow, portable foam nap mat, portable infant sleeper, portable hook-on chair, soft-sided portable crib, stroller, and toddler mattress.

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Juvenile products do not include electronics, medical devices, or an “internal component” of a product that would not come into contact with a child’s skin or mouth during reasonably foreseeable “use and abuse of the product.”

Assembly Bill 2771 bans the manufacture, delivery or sale of any cosmetic product containing “intentionally added” PFAS starting January 1, 2025. <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2771" target="_blank" rel="noreferrer noopener">Bill Text - AB-2771 Cosmetic products: safety. (ca.gov)</a>. The law defines “cosmetic product” as an “article for retail sale or professional use intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.” Unlike other California PFAS regulations, this regulation only targets “intentionally added PFAS” (including PFAS breakdown products). The bill does not set an upper limit on fluorine content in cosmetics where the PFAS is not intentionally added.

In addition to Gov. Gavin Newsom’s veto of a PFAS reporting rule (AB 2247), the governor also recently vetoed California assembly bills prohibiting PFAS in cleaning products (AB 727), in menstrual products (AB 246) and on artificial turf surfaces (AB 1423). The governor’s reluctance to sign off on all the California legislature’s new PFAS regulations was based, in part, on the failure of each bill to identify the agencies responsible for regulatory and enforcement oversight over the legislation. <a href="https://www.gov.ca.gov/wp-content/uploads/2023/10/AB-727-VETO.pdf" target="_blank" rel="noreferrer noopener">SFresno_Biz23100819580 (ca.gov)</a>; <a href="https://www.gov.ca.gov/wp-content/uploads/2023/10/AB-246-VETO.pdf" target="_blank" rel="noreferrer noopener">SFresno_Biz23100819580 (ca.gov)</a>; <a href="https://www.gov.ca.gov/wp-content/uploads/2023/10/AB-1423-VETO-1.pdf" target="_blank" rel="noreferrer noopener">SFresno_Biz23100819580 (ca.gov)</a>. The governor also acknowledged: “Previously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions” (emphasis added). Further attempts to regulate PFAS in other consumer products in California do not appear to be off the table. While 2024 promises to be a banner year for new federal PFAS regulations, product manufacturers and importers, distributors, and retailers will need to keep an eye on regulatory developments in the Golden State for years to come.

California’s Approach to PFAS Regulation Creates Compliance Challenges

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