By Christine M. Carson, Partner at Aleshire & Wynder, LLP
Three new California laws aim to reduce the introduction of perfluoroalkyl and polyfluoroalkyl (PFAS) substances into groundwater by restricting the use of these chemicals in manufacturing. PFAS refers to a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.[1] These substances are found in products such as fire-retardant foam, carpets, fabrics, food packaging, and materials designed to be waterproof, stain-resistant or non-stick.
In recent years, concerns have been raised about possible adverse health impacts from exposure to PFAS, including decreased immune response and impaired kidney function. In particular, exposure through drinking water has become of interest due to the tendency of PFAS to accumulate in groundwater.
A summary of each of the three bills follows below.
AB 652 (Friedman) - Prohibits PFAS in New Juvenile Products
Assembly Bill 652, which takes effect July 1, 2023, prohibits people and manufacturers from selling or distributing any new juvenile products that contain regulated PFAS.[2] “Regulated PFAS" refers to either of the following:
(1) PFAS, PFAS components and PFAS breakdown products intentionally added to a product having a functional or technical effect;
(2) The presence of PFAS in a product or product component at or above 100 parts per million, as measured in total organic fluorine.
[3]
Proponents of the law assert that children are more susceptible to adverse health impacts from chemical exposure because they behave in ways that increase exposure.
AB 652 defines “juvenile product” as a product designed for use by those under 12 years of age.[4] However, “juvenile products” do not include (a) children’s electronics; (b) medical devices; (c) internal components of juvenile products that would not come into direct contact with a child’s skin or mouth during reasonably foreseeable use and abuse of the products; or (d) adult mattresses.[5]
AB 1817 (Ting) - Regulates PFAS in Food Packaging and New Textiles
AB 1817 takes effect January 1, 2025. It prohibits distributing or selling food packaging containing PFAS and requires manufacturers to use the least toxic alternative to replace regulated PFAS substances. Additionally, it prohibits manufacture, distribution, or sale of new (not used) textile articles, including apparel, that contain regulated PFAS.[6] “Apparel” includes indoor or outdoor wear for regular or formal occasions, but does not include apparel for exclusive use by the U.S. military.[7] While the ban does not apply to outdoor apparel for severe wet conditions until January 1, 2028, commencing January 1, 2025, no person may distribute, sell, or offer for sale any new outdoor apparel for severe wet conditions containing regulated PFAS unless accompanied by the statement “Made with PFAS chemicals.”[8]
Under this law, “regulated PFAS” means either of the following:
(1) PFAS, PFAS components, or PFAS breakdown products that a manufacturer has intentionally added to a product, or
(2) the presence of PFAS in a product or product component at or above the following thresholds, as measured in organic fluorine:
(A) Commencing January 1, 2025, 100 parts per million;
(B) Commencing January 1, 2027, 50 parts per million.
[9]
AB 1817 provides for certain exceptions from the list of regulated textiles. These exceptions include (1) single-use paper hygiene products, (2) carpets/rugs; (3) treatments for use on converted textiles or leathers; (4) motor vehicles, aircraft, boats and their component parts; (5) filtration media and filter products used in industry, including chemical or pharmaceutical manufacturing, and environmental control; (6) textile articles used in laboratory testing; and (7) architectural fabric structures.[10]
Manufacturers must provide a certificate of compliance with the new law.[11] Reliance on a certificate of compliance provides a “good faith” defense to violation of the new law.[12]
AB 2771 (Friedman) Prohibits Intentionally Adding PFAS in Cosmetic Products
AB 2771 takes effect January 1, 2025. It prohibits the manufacturing, sale, delivery, holding, or offering for sale any cosmetic product that intentionally contains PFAS ingredients.[13] The statute defines “cosmetic product” as an article for retail sale or professional use intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.[14]
Special District Potential Impacts
These new laws aim to reduce the introduction of PFAS into the water supply by restricting the use of PFAS in manufacturing. This source-control approach can, in turn, reduce the cost burden on public agencies, including special districts, involved in testing, reporting and remediation of PFAS.
A case before the U.S. Supreme Court may impact state efforts to regulate products made out of state that are distributed nationwide. National Pork Producers Council v. Ross, 142 S.Ct. 1413 (Mem), 212 L.Ed.2 776 (2022) [Docket No. 21-468], currently under consideration, may have implications for the question of whether a state may require a widely-distributed product to conform to its own in-state standards -- even though produced in another state with less stringent standards. The case stems from California’s regulations on animal confinement; it remains to be seen whether the outcome of this case will impact state PFAS statutes.
Stay tuned to the New Laws Series in CSDA eNews for more in-depth analyses on new laws affecting special districts.
Missed Part 1? Read it now: LAFCO Protest Procedures
Missed Part 2? Read it now: Unpaid Water Service Bills: Where We are in 2023
Missed Part 3? Read it now: Connection Fee and Capacity Charge Requirements for Public Agencies
Missed Part 4? Read it now: Brown Act Updates on Teleconferencing, Agenda Posting, and Disruptions of Board Meetings
Communication is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues and attorneys should perform an independent evaluation of the issues raised in these communications.
[1] See, e.g., Health & Safety [“H&S”] Code § 108945(e).
[2] H&S Code § 108946.
[3] H&S Code § 108945(b).
[4] H&S Code § 108945(c )(1).
[5] H&S Code § 108945(c)(2).
[6] H&S Code § 108971(a)(1).
[7] H&S Code § 108970(a), (c).
[8] H&S Code § 108971(a)(2).
[9] H&S Code § 108970(g).
[10] H&S Code § 108970(i)(2).
[11] H&S Code § 108971(c).
[12] H&S Code § 108971(d).
[13] H&S Code § 108981.5.
[14] H&S Code § 108982(a).
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