PFAS-Containing Consumer Products Under Attack in California


Per- and polyfluoroalkyl substances (PFAS) are present in a variety of consumer products. PFAS have been increasingly targeted in laws and regulations and have served as a hotbed for class action lawsuits, particularly in California. As discussed below, a wave of prohibitions on PFAS in consumer products has recently or will soon come into effect in California and we expect to see an increase in related consumer products class action lawsuits.

Use of PFAS in Consumer Products

PFAS can be present in a variety of consumer products, such as food packaging, cleaning products, non-stick cookware, paints and varnishes, and personal care products like shampoo, dental floss, and cosmetics. PFAS can also be used in manufacturing processes for electronics, textiles, and paper.[1]

California Safer Food Packaging & Cookware Act of 2021

The latest prohibition on PFAS comes from the California Safer Food Packaging & Cookware Act of 2021, with two specific requirements that became effective on January 1, 2023. First, PFAS is now prohibited in food packaging at or above 100 parts per million,[2] measured as total organic fluorine.[3] Second, intentionally added PFAS that appear on the state’s Department of Toxic Substances Control’s (DTSC) Candidate Chemicals List (of which 66 are PFAS) in cookware must be disclosed on the manufacturer’s website.[4]

Proposition 65 Warning Requirements

California’s Proposition 65 is a consumer protection statute that requires businesses selling consumer products in California to provide warnings to consumers about significant exposures to chemicals that cause cancer and/or birth defects or other reproductive harm.
 
The Proposition 65 warning requirements for PFAS have also seen recent changes. In December 2022, warning requirements for the following PFAS went into effect. Currently, no safe harbor limits have been established for PFAS in consumer products.

Additional Changes Coming

The following are additional upcoming changes to PFAS regulation:

Takeaways


[1] Id.

[2] See Health & Safety Code § 109000.

[3] It should be noted that a total organic fluorine test itself does not test for the presence of PFAS, only the presence of organic fluorine. While all PFAS are organofluorine compounds, not all organofluorine compounds are necessarily PFAS.

[4] See Health & Safety Code § 109012.

[5] See Health & Safety Code § 109011.

[6] See Health & Safety Code §§ 108981.5, 108982.

[7] See Health & Safety Code §§ 108970; 108971.


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National Law Review, Volumess XIII, Number 23