In recent years, state and federal agencies have either passed or proposed increasingly stringent regulations regarding the use of per-fluoroalkyl and poly-fluoroalkyl substances (PFAS) in consumer products. Not surprisingly, the state of California has been at the forefront of these efforts. California’s place at the forefront of PFAS regulation continues, as the California legislature recently passed three new bills—AB 2771, AB 1817, and AB 2247—seeking to eliminate the use of PFAS in textiles and cosmetics.
AB 2771 would prohibit the manufacture, sale or marketing of any cosmetic product that contains intentionally added PFAS. AB 1817 would prohibit the manufacturing, distribution or marketing of any new textile article—including clothing—that contains regulated PFAS. AB 1817 also requires a manufacturer of textiles to provide customers or suppliers a certificate of compliance stating that the product does not contain regulated PFAS. Lastly, AB 2247 would require any manufacturer of PFAS or a product containing intentionally added PFAS to register the PFAS or the product containing intentionally added PFAS into a publicly accessible data collection interface. Violations of the reporting requirement would be subject to civil penalties and other enforcement provisions.
Governor Newsom is expected to sign the bills into law no later than September 30, 2022. If passed, these bills will go into effect January 1, 2025, with the exception of AB 2247, which would go into effect July 1, 2026.
However, even if these bills are passed, it is yet to be seen whether these bills will withstand judicial scrutiny given they are, arguably, at odds with federal law. The US Federal Drug and Food Administration—the federal agency charged with regulating the food, drug, and cosmetics industry—has not banned PFAS from any of the products under its purview. In fact, the FDA has specifically approved some types of PFAS for use in certain food contact applications, reflecting a governmental determination that there is a reasonable certainty that no harm will come from their use in the applications for which they have been approved. As such, it is expected that manufacturers of these products may challenge the enforcement of these statutes.
Notwithstanding the potential conflict between California and federal law, companies involved in the manufacture and sale of PFAS-containing cosmetics and textiles—including clothes and carpeting materials—should actively research alternatives to PFAS in their products right now. Businesses simply cannot assume that California’s new laws will be unenforceable, particularly with the EPA’s stated intent to further regulate PFAS. Should businesses fail to prepare, they could risk losing product sales in California, the world’s fifth largest economy.
