The end of May 2022 saw two new significant California PFAS laws make their way through the legislature, taking significant steps forward to becoming laws that are presented to the Governor for signature. Both bills to some degree focus directly on consumer goods. With increasing attention being given to PFAS in consumer goods in the media, scientific community, and in state legislatures, the California PFAS laws underscore the importance of companies anywhere in the manufacturing or supply chain for consumer goods to immediately assess the impact of the proposed PFAS legislation on corporate practices, and make decisions regarding continued use of PFAS in products, as opposed to substituting for other substances.  At the same time, companies impacted by the PFAS legislation must be aware that the new laws pose risks to the companies involvement in PFAS litigation in both the short and long term.

California PFAS Laws

On May 23, 2022, AB 1817 passed in the California Assembly by a vote of 52-2, with 24 members abstaining. While the bill has been hotly debated from its original proposed form, which was more broad than the current language, the bill would prohibit the sale of many types of clothing and textiles that contain PFAS at or above a level of 300 parts per billion starting in 2025. The bill specifically requires manufacturers of covered products that remove PFAS from products to utilize the “least toxic alternative” when identifying the PFAS substitute. In addition, all manufacturers would be required to report to the state all PFAS-containing products that they import into the state of California. The current version of the bill does include several exemptions of covered products, such as vehicle component parts, PPE, military clothing, filters used in industrial applications, and lab clothing. AB 1817 now goes the the California Senate for consideration.

The second of the California PFAS laws that was approved by the Assembly was AB 2247, which was approved by a vote of 43-19, with 16 abstentions. The bill would require “a manufacturer of intentionally added PFAS or a product or product component containing intentionally added PFAS that is sold, offered for sale, or distributed into the state to register the PFAS or the product or product component containing intentionally added PFAS on the publicly accessible reporting platform created by the Department of Toxic Substances Control (DTSC) and the Interstate Chemicals Clearinghouse (ICC).” The law, if passed, would require the specified reporting by July 1, 2025. The bill would also require manufacturers to report on ICC’s publicly available platform information concerning all PFAS or any products that contain intentionally added PFAS. The reporting requirement would begin on July 1, 2025 and would be an annual obligation. AB 2247 now goes to the California Senate for consideration.

Both bills are expected to be opposed by various groups for a variety of reasons, most prominently concerns that both bills are too overly broad as currently worded.

Impact of California PFAS Laws On Businesses

California’s legislation places several types of consumer products directly in the crosshairs with respect to PFAS and adds reporting requirements to manufacturers with respect to PFAS whether intentionally added or not. While other states have banned or otherwise regulated PFAS in certain specific consumer goods, California’s bill is noteworthy given the economic impact that it will have, considering that California is the fifth-largest economy in the world.

It is of the utmost importance for businesses along the whole cosmetics supply chain to evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate these compounds. One major point of contention among members of various industries is whether to regulate PFAS as a class or as individual compounds.  While each PFAS compound has a unique chemical makeup and impacts the environment and the human body in different ways, some groups argue PFAS should be regulated together as a class because they interact with each other in the body, thereby resulting in a collective impact. Other groups argue that the individual compounds are too diverse and that regulating them as a class would be over-restrictive for some chemicals and not restrictive enough for others.

Companies should remain informed so they do not get caught off guard. States are increasingly passing PFAS product bills that differ in scope. For any manufacturers, especially those who sell goods interstate, it is important to understand how those various standards will impact them, whether PFAS is regulated as individual compounds or as a class. Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long-term savings for companies and should be commonplace in their own risk assessment.