In a step toward increased regulatory attention on so-called forever chemicals, California Governor Gavin Newsom recently signed into law two bills requiring manufacturers to limit the amount of per-and poly-fluoroalkyl substances (PFAS) in particular products.
The first signed bill, AB 347, amends existing PFAS law to provide enforcement mechanisms for PFAS bans and labeling requirements as applied to "covered products," including juvenile products, textile articles and food packaging.
AB 347 will require all manufacturers of covered products to by July 1, 2029, register such products with the Department of Toxic Substances Control, pay a registration fee and provide the department with a statement of compliance reflecting that each covered product is in compliance with the applicable covered PFAS restriction. "Covered products" include juvenile products as defined in Section 108945, textile articles as defined in Section 108970 and food packaging as defined in Section 109000. The covered PFAS restrictions that must be reported to the Department of Toxic Substances Control include the restriction on (i) the sale or distribution of any new juvenile product that contains regulated PFAS chemicals; (ii) the manufacture, distribution or sale of any new textile articles that contain regulated PFAS; and (iii) the distribution or sale of any food packaging that contains regulated PFAS.
The Department of Toxic Substances Control may request that manufacturers provide corresponding technical documentation and analytical testing to demonstrate compliance. The bill directs the department to publish on its website a list of acceptable PFAS testing methods and third-party laboratory accreditations by January 1, 2029. Manufacturers should note that the department has the authority to procure and test covered products for compliance at random or by a process it dictates in future regulation. Importantly, the department will not enforce AB 347 until July 1, 2030, which provides time for manufacturers to adjust to new requirements and the acceptable testing methodologies. On or after July 1, 2030, the department may pursue administrative penalties of not less than $10,000 for the first violation. Penalties may be assessed for each violation of a separate provision, and for continuing violations, a penalty may be assessed for each day the violation continues.
The second bill, AB 2515, or the Take All Menstrual Product-PFAS Out Now (TAMPON) Act, forbids manufacturers from manufacturing, selling or distributing menstrual products containing regulated PFAS. Regulated PFAS will on January 1, 2025, include those intentionally added to a product. Importantly, on January 1, 2027, the definition of regulated PFAS will expand to include the presence of PFAS in a product or product component at or above a limit to be determined by the Department of Toxic Substances Control.
AB 2515 otherwise mirrors the requirements and timing of AB 347 for manufacturers to register products with the Department of Toxic Substances Control, pay the registration fee and provide the department with a statement of compliance. The department is required, however, to publish accepted testing methods for PFAS levels in menstrual products and third-party laboratory accreditations by January 1, 2027, preceding the date listed in AB 347. Manufacturers should note that this date aligns with the date when restricted PFAS will include all PFAS that exceed the allowable limit to be determined by the department.
Manufacturers should expect the department to issue implementing regulations for both bills by January 1, 2029.
In either case, manufacturers should keep apprised of California's developing PFAS bans and monitor the department's website for upcoming regulations and direction regarding acceptable testing methods.
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