By Jeryl L. OlsonPatrick D. JoyceRebecca A. DavisJose AlmanzarIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: Governor Gavin Newsom has signed into law two sweeping pieces of legislation prohibiting  certain products containing intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS) in California starting on January 1, 2025. 

PFAS are a category of as many as thousands of fluorinated organic chemicals that may be used in consumer products or packing for a variety of uses. Certain PFAS are sometimes referred to as “forever chemicals” because they bioaccumulate and are long lasting in the environment.

The first bill, AB 1817, generally prohibits by 2025 the manufacture, distribution and sale of intentionally added PFAS in textiles. In the bill, “textile” is broadly worded to include natural, manufactured or synthetic materials, which are incorporated into textile articles. This results in the term including a broad category of apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths.  Specifically carved out of the definition are single-use paper products, carpets and rugs, textile treatments, vehicle components, industrial filtration materials and laboratory testing materials. Additionally, the law completely exempts military attire and personal protective equipment. The ban on PFAS in rain gear also will be phased-in.

The second bill, AB 2771, bans the manufacture, sale, delivery or offer of cosmetic products with intentionally added PFAS. Unlike the ban impacting the textile industry, there are no exceptions for any type of cosmetic, and the impacted products include “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.”  

These new laws continue California’s aggressive regulation of PFAS. Last year, the Governor approved bills that limit or prohibit the use of PFAS in food packaging and cookware starting January 1, 2023, and prohibit the sale or distribution of any new, nor previously owned, juvenile product containing regulated PFAS after July 1, 2023. California also has onerous state regulation of some PFAS under Proposition 65, while some municipalities have completely banned the use of PFAS in single-use products (see San Francisco Ordinance No. 201-18).

The new California laws follow regulation in other Western states.  In early-2022, Governor Jay Inslee of Washington signed HB 1694 into law. Similar to California’s AB 1817 and AB 2771, Washington HB 1694 requires an aggressive phase-out of PFAS from textiles and clothing, other consumer products such as non-stick pans, waxes, and cosmetics, as well as firefighting personal protective equipment, by the end of 2025. HB 1694 requires the Washington State Department of Ecology to implement regulations governing the use of PFAS in these products by December 1, 2025.

The Washington law is not a total ban on PFAS.  Rather, it allows the Department of Ecology to identify certain “priority products” containing PFAS for regulation and to exempt others based upon a five-year review cycle. Manufactures who utilize PFAS in Washington are concerned that the five-year cycle for determining whether a product will be regulated or not will introduce an unacceptable level of uncertainty into the market. Such uncertainty will affect whether these manufacturers are required to comply with the to-be-issued regulations, and may affect already-strained supply lines and prevent consumers from obtaining any products (whether regulated or not) in a timely manner.

In Oregon, the State determined that “no major source of PFAS has been found in Oregon that would create regular exposure for Oregonians” after conducting testing of over 150 drinking water sources throughout the state in 2021 and 2022. However, Oregon passed the “Toxic Free Kids Act” in 2015, which established “high priority chemicals of concern” for children’s products and requires that certain products containing these high priority chemicals eventually be phased out. Confusingly, PFOS is included in the list of high priority chemicals, but other PFAS such as PFOA are not.

We had blogged previously about EPA Advance Notice of Proposed Rulemaking on Per- and Polyfluoroalkyl Chemicals, NDAttention – National Defense Authorization Act (NDAA) Adds Per- and Polyfluoroalkyl Chemicals to TRI, Revision to ASTM Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, and EPA Adds PFAS to 313 Reporting for 2020

As always, please reach out to your Seyfarth Workplace Safety and Environmental attorney to discuss questions or to see how this may impact your company.