California Bans PFAS in Apparel, Textiles, Cosmetics

Governor Gavin Newsom signed into law last week legislation that prohibits the manufacture, distribution, and sale of textiles and cosmetics containing PFAS in California beginning in 2025—just over two years from now. The textiles law broadly defines textiles to include apparel, accessories, bags, bedding and upholstery, as well as other household fabric products.

The California market for many of the banned products is among the largest in the United States, putting pressure on manufacturers and retailers of those products to end their sale nationally.  Several states have already enacted similar legislation to ban product categories or mandate reporting on PFAS in products. Product manufacturers and distributors who sell PFAS containing products are generally not subject to penalties under product bans, but, with increasing frequency, they are being sued in class action and other litigation.[1]

New California PFAS Laws

The Governor signed two bills into law in California: AB 1817, and AB 2771.  He vetoed a third bill passed by the state legislature, AB 2247.

 1. AB 1817

AB 1817 prohibits the manufacturing, distribution, or sale of textiles containing intentionally added PFAS beginning Jan. 1, 2025.[2] As described above, the definition of textiles is broad, although it excludes single-use paper products, carpets and rugs, textile treatments, vehicle components, industrial filtration materials, and laboratory testing materials.[3] The law covers products when PFAS has been intentionally added to “have a functional or technical effect in the product” and the total organic fluorine in the product exceeds certain phased thresholds.[4] Laboratories can test for total organic fluorine (fluorine atoms that have bonded to carbon atoms) as a proxy for PFAS in a given sample. The total organic fluorine thresholds set in the law are 100 parts per million starting January 1, 2025, with a step down to 50 parts per million beginning January 1, 2027.[5]

AB 1817 has a number of exceptions that consumer product manufacturers should keep in mind. It contains a delayed phase-in for products classified as “outdoor apparel for severe wet conditions,” including outerwear products for activities such as mountaineering, fishing, and whitewater kayaking.[6] The manufacture, distribution, and sale prohibition for severe wet condition apparel begins on January 1, 2028, however, those products must be clearly labeled as “Containing PFAS chemicals” starting January 1, 2025.[7] Further, the law completely exempts personal protective equipment (“PPE”)[8] and “clothing items for exclusive use by the United States military” from the manufacture, distribution, and sale prohibitions. The law contains no provisions that would phase-in prohibitions on such products.

2. AB 2771

A companion bill, AB 2771,  prohibits the manufacture, sale, delivery, or offer for sale of cosmetic products with intentionally added PFAS after Jan. 1, 2025.[9] It has no exceptions for any type of cosmetics, which are defined 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.”[10] The law covers all PFAS, and does not provide a lower threshold for PFAS content.[11] The failure to provide a threshold may make it difficult for companies that face even minimal contamination issues from unknown sources. This represents an expansion of a California law enacted in 2020 that banned the use of 13 specific PFAS in cosmetics.[12]

Neither AB 1817 nor AB 2771 includes a penalty provision, and neither law designates an agency for implementation or enforcement. It is not therefore clear yet how these laws will be enforced, and product manufacturers and retailers will therefore need to closely monitor this space.

3. AB 2247 (vetoed legislation)

Governor Newsom vetoed AB 2247, a bill that would have required consumer product manufacturers to submit annual reports of intentionally added PFAS in all products and product components beginning January 1, 2026.[13] The bill would have authorized the California Department of Toxic Substances Control to create a publicly accessible database for the collection of information, and failure to report would be subject to civil penalties.[14] Considering the ubiquitous use of PFAS in consumer products and the limited set of broadly accepted test methodologies to identify quantities of particular PFAS chemicals, such a database would be a complicated undertaking. Governor Newsom noted in his veto message the costs associated with setting up such a program, as well as ongoing efforts by the U.S. EPA to seek PFAS reporting in products.[15] The Governor concluded that AB 2247 “may be premature.”[16]

Governor Newsom’s decision is notable in its divergence from the state of Maine, which adopted a similar reporting framework that is set to go into effect on January 1, 2023.[17]

Already Existing California PFAS Laws

The new action taken by the state of California this year is not the first time the state has regulated PFAS. It already regulates PFAS in firefighting foam, paper-based food packaging, and children’s products.

1. Proposition 65

California’s Safe Drinking Water and Toxic Enforcement Act, also known as Proposition 65, requires product manufacturers, producers, packagers, importers, suppliers, or distributors to place “clear and reasonable” warnings on products that contain chemicals that may cause cancer, birth defects, or other reproductive harms.[18] California has listed PFOS, PFOA, and PFNA on its chemical inventory.[19] The California Office of Environmental Health Hazard Assessment has proposed to list Perfluorodecanoic Acid (PFDA), perfluorohexanesulfonic acid (PFHxS), and perfluoroundecanoic acid (PFUnDA) as chemicals known to cause reproductive toxicity, although that process is ongoing at the time of this writing.^[20]

2. Cal. Health and Safety Code Section 108945 (AB 652)

This law prohibits the sale or distribution of juvenile products containing intentionally added PFAS after July 1, 2023.[21] The law broadly defines juvenile products to include any “product designed for use by infants and children under 12 years of age.”[22] It includes limited exceptions to this definition.[23] It also includes a threshold for measuring PFAS content based on total organic fluorine at or above 100 parts per million.[24] The law includes no civil penalty provisions.

3. Cal. Health and Safety Code Section 109000 (AB 1200)

This law prohibits the distribution, sale, or offer for sale of food packaging containing PFAS beginning next year, on January 1, 2023.[25] The law defines food packaging as “a nondurable package, packaging component, or food service ware that is intended to contain, serve, store, handle, protect, or market food, foodstuffs, or beverages, and is comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers.”[26] The law includes a threshold for measuring PFAS content based on total organic fluorine at or above 100 parts per million.[27] It also includes a requirement to label cookware containing PFAS beginning January 1, 2024.[28] The law includes no civil penalty provisions.

4. Cal. Public Resources Code Sections 42356, 42356.1, and 42357 (AB 1201)

This law prohibits the labeling of a plastic product as “compostable” if it contains PFAS as measured through over 100 parts per million of total organic fluorine.[29]

As Maine Goes, So Goes the Nation

“As Maine goes, so goes the nation” was once a maxim in U.S. politics. The state gained a reputation as a bellwether in presidential elections. That old adage could also apply to PFAS—Maine was the first U.S. state to enact comprehensive regulations of products containing PFAS. Besides California, a number of other states have followed Maine by adopting state PFAS laws and regulations. In New York, for example, S.6291A/A.7063A currently sits on the Governor’s desk awaiting the Governor’s signature. If signed, the bill would prohibit the sale or offer for sale of any apparel containing intentionally added PFAS beginning January 1, 2024.[30] Washington State has begun to develop regulations prohibiting PFAS in a variety of product categories. And Colorado adopted a set of bans on products containing PFAS that will begin to phase in January 1, 2024.[31] As this patchwork of state regulations continues to expand, pressure for federal action will almost certainly grow.

Recent Litigation

Along with the rise of state regulations of products containing PFAS, there has also been a parallel rise in lawsuits against product manufacturers that use PFAS in their products or production process, covering a diverse range of industries such as apparel, cosmetics, food service, paper products, feminine hygiene products, cleaning supplies, and dental products. In the last year alone, complaints have been filed against Clorox as parent company of Burt’s Bees,[32] Shiseido,[33] CoverGirl,[34] L’Oreal,[35] McDonald’s,[36] REI,[37] Keurig Dr. Pepper,[38] and several other companies.

In a forthcoming article, Marten Law will cover the full scope of PFAS products litigation, patterns emerging in that litigation, and lessons to be gleaned for consumer product manufacturers and retailers. It is already clear that certain product categories are more likely to face litigation—and those litigation patterns follow where the regulatory and advocacy winds blow. The early days of this litigation show clear advantages to proactive preparation, the need to adapt sales and marketing practices to the new regulatory landscape, and to prepare for product liability litigation.

Conclusion

The wave of regulation and lawsuits involving PFAS containing products is now top of mind for many companies—that will continue to be the case in the coming year. With some product bans coming into effect now, PFAS can pose a number of challenges for consumer product manufacturers, including supply chain, reputational, and legal issues. 

Marten Law is already helping many manufacturers and retailers address these pressing issues. For more information about PFAS product regulations and liability, please contact any member of Marten’s PFAS Products Team, including James Pollack.