Our blog has reported previously on California PFAS regulations, including its watershed laws with novel definitions of PFAS and the noted problems with the total organic fluorine testing method. (Prior CA blog posts on PFAS).
We have also written on California’s PFAS ban in many children’s products and in disposable food packaging (here), California’s requirements on carpet and rug manufacturers to consider alternatives to PFAS, and bans (except under specified circumstances) on any cosmetic product that contains any of several specified intentionally added PFAS ingredients.
Today we are reporting on the proposed further expansion of the PFAS regulated by the state.
The California Health & Safety Code defines “ ‘[r]egulated perfluoroalkyl and polyfluoroalkyl substances’ or ‘regulated PFAS’ ” as either: (1) PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including, but not limited to, the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product; or (2) The presence of PFAS in a product is at or above 100 parts per million, as measured in total organic fluorine. Cal. Health & Safety Code § 108945(b)(1)-(2) (Juvenile products); 109000(b)(1)-(2) (Food packaging).
Under the laws governing children’s products and food packaging, even if PFAS is not intentionally added to the product, the product can still be regulated if “the presence of PFAS in a product or product component [is] at or above 100 parts per million, as measured in total organic fluorine.”
Now a new California bill, SB 682 (covered products: consumer cleaning products, cookware, dental floss, juvenile products, food packaging, ski wax) expands further the definition of “intentionally added” PFAS by eliminating a limitation. The new proposed law defines “intentionally added PFAS” as: “PFAS intentionally used or produced during a product’s manufacture or processing that is introduced into or onto the product, whether or not it confers a functional or technical effect in the product. This includes any source of PFAS that is reasonably known to be present, including the use of processing agents, mold release agents, or fluorination, but does not include contaminated natural resources, such as water.”
The added expansion eliminates the limitation that the PFAS confer a “functional or technical effect…”
The bill would, beginning Jan. 1, 2027, prohibit distributing, selling, or offering for sale a covered product that contains intentionally added PFAS, as defined, except for previously used products and as otherwise preempted by federal law. The bill would, beginning Jan. 1, 2040, prohibit distributing, selling, or offering for sale certain products that contains intentionally added PFAS, including, but not limited to, refrigerants, solvents, propellants, and clean fire suppressants, as specified, unless the department has made a determination that the use of PFAS in the product is a currently unavoidable use, the prohibition is preempted by federal law, or the product is previously used.
This bill would also, beginning Jan. 1, 2033, prohibit distributing, selling, or offering for sale any other product, as defined, that contains intentionally added PFAS unless the department has made a determination that the use of PFAS in the product is a currently unavoidable use, the prohibition is preempted by federal law, or the product is previously used.
To be excepted as a product with a “currently unavoidable use,” the product must meet all of the following elements: (1) There are no safer alternatives to PFAS that are reasonably available; (2) The function provided by PFAS in the product is necessary for the product to work; and (3) The use of PFAS in the product is critical for health, safety, or the functioning of society.
We will continue to follow updates to state PFAS laws impacting various consumer products and industries.