Extracted from Law360
California is pressing ahead with a bill that would ban the sale or distribution in the state of new products containing intentionally added per- and polyfluoroalkyl substances. The state has already enacted bans on PFAS in textiles, cosmetic products, food packaging and juvenile products.
But the proposed bill, S.B. 903, goes significantly further and applies to all products, with some notable exceptions. California would join a handful of other states that have passed sweeping laws banning PFAS in products.
Passage is expected, so companies should take California's proposed legislation seriously. The time to prepare is now.
PFAS
PFAS are a group of nearly 15,000 manufactured chemicals that are widely used in industrial and consumer applications because of their waterproof, grease, heat, stain-resistant or nonstick properties.
Commercial applications of PFAS span many sectors of the economy, including aerospace, apparel, automotive, construction, pharmaceuticals, medical devices, paints, electronics, semiconductors, energy, oil and gas exploration, first responder safety, firefighting foams and healthcare.
PFAS' widespread use, and low-level presence in the environment, pose challenges for studying and evaluating the substances' potential health and environmental risks.
State Bans and Restrictions on PFAS
A handful of states throughout the country, including California, have enacted legislation banning or otherwise restricting PFAS in various products, such as carpets, rugs, juvenile products, food packaging, personal care products and firefighting foam.
California's restrictions on PFAS in food packaging and juvenile products are currently in effect. The state's ban on PFAS in textiles and cosmetic products goes into effect on Jan. 1, 2025.
Two states, Maine and Minnesota, have enacted sweeping bans on PFAS in almost all products.
In 2021, Maine enacted a first-in-the-nation ban on the use of PFAS in products under a phased approach, with a complete ban starting on Jan. 1, 2030, unless the Maine Department of Environmental Protection determines by rule that a use of PFAS represents a currently unavoidable use. The Maine law also includes rigorous reporting requirements.
In 2023, Minnesota joined Maine in enacting a near-complete ban of PFAS in products, with reporting obligations.
California's S.B. 903
Beginning Jan. 1, 2030, S.B. 903 would prohibit "a person from distributing, selling, or offering for sale a product that contains intentionally added PFAS" unless the product is already used, California's Department of Toxic Substances Control determines that the added PFAS result from an unavoidable use, or the prohibition is preempted by federal law.
Products falling under S.B. 903 include items that are "manufactured, assembled, packaged, or otherwise prepared for sale in California."
S.B. 903 defines PFAS as a "class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom." In other words, the bill would regulate nearly 15,000 different PFAS compounds with different chemistries as a single class.
The bill defines "intentionally added" to mean either that PFAS are added to a product that has a "functional or technical effect in the product," or that PFAS are "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."
Before S.B. 903 took effect, the DTSC would have to consider public petitions to determine appropriate effective dates for phasing out certain products that contain PFAS.
After the most recent amendments to the bill, the DTSC would have to consider requests to establish effective dates earlier than Jan. 1, 2030, for product categories if any of the following conditions is met: There are safer alternatives to PFAS that are reasonably available; the function provided by PFAS in the product is not necessary for the product to work; and the use of PFAS in the product is not critical for the "health, the safety, or functioning of society."
The DTSC could also phase out certain products that contain PFAS before the effective date, if a publicly available study or evaluation of alternatives shows the viability of safer alternatives in the product or product category.
Product manufacturers or associations or groups of product manufacturers must petition the DTSC and receive a determination that the use of PFAS in a product is a "currently unavoidable use." Otherwise, the product is prohibited beginning Jan. 1, 2030.
The DTSC would evaluate petitions on a variety of criteria, including whether "the function provided by PFAS in the product is necessary for the product to work."
This means that thousands of companies — and the hundreds of thousands of products and product components these companies manufacture — could only remain in the marketplace pending a determination by DTSC staff.
Enforcement of the Product Ban
S.B. 903 contains a draconian enforcement regime, unlike other state PFAS bans. Companies that violate the law could be liable for a civil penalty of up to $1,000 for each day during which the violation continues. Subsequent violations could result in a fine of up to $2,500 per day for each violation.
Moreover, the DTSC could even request that a product manufacturer provide laboratory tests showing that the product contains no intentionally added PFAS. The DTSC could also direct the manufacturer to notify sellers that the sale of the product is prohibited in the state, and provide the DTSC with a list of the names and addresses of those notified.
Key Takeaways for Businesses
S.B. 903 would affect a diverse array of products, applications and industries — not just in California, but nationwide. In the modern stream of commerce, with e-commerce websites and marketplaces, it may be difficult for companies that distribute products into multiple states to control where a product — or product component — may ultimately be sold.
The time for businesses throughout the supply chain to start preparing is now. First, businesses should take stock of what products they manufacture or sell that may contain PFAS.
S.B. 903, like other state bans, regulates PFAS as an entire class, even though the overwhelming majority of these 15,000 chemicals are not well-studied. Businesses may want to consult with a reputable laboratory on product testing.
Second, businesses should consider communicating with other entities in their supply chain about PFAS in their products. For example, downstream entities could request information and certifications from manufacturers on the presence of PFAS.
Third, businesses should review supplier agreements to ensure they contain appropriate defense and indemnification provisions. This is particularly pressing, since S.B. 903 would impose significant penalties for noncompliance.
There is also the potential for private parties to enforce the law through California's Unfair Competition Law.
Fourth, if S.B. 903 is adopted, companies should consider engaging with a product manufacturer group or association to assist with petitioning the DTSC to determine whether the use of PFAS in a specific product or product category is unavoidable.