California Bans Regulated PFAS from Apparel, Textiles, and Cosmetics
November 3, 2022
On September 29, 2022, Governor Newsom signed AB 1817 and AB 2771 into law, which prohibit the manufacture, distribution, sale, and offering for sale of new “textile articles” that contain “regulated perfluoroalkyl and polyfluoroalkyl substances” (“regulated PFAS”) and cosmetic products containing intentionally added PFAS, respectively. Both AB 1817 and AB 2771 become effective on January 1, 2025.
PFAS are a class of chemicals that are toxic and highly persistent in the environment. PFAS are often referred to as “forever chemicals” because they are difficult to degrade in the natural environment meaning they persist in water, soil, air, and our bodies. PFAS is linked to several adverse health problems including cancers, developmental harm, and immune system disruption. PFAS were traditionally used in a wide variety of consumer products like food packaging, cookware, cleaning, apparel, and personal care products. In recent years, the California Legislature has focused its efforts on legislation to minimize PFAS in consumer products, including regulating PFAS content in food packaging and cookware (AB 1200 (2021)), which goes into effect on January 1, 2023.
AB 1817 – Textile Articles
AB 1817 prohibits any person from manufacturing, distributing, selling, or offering for sale new “textile articles” that contain regulated PFAS. The definitions of “textile articles” and “regulated PFAS” are important because AB 1817 is limited to intentionally-added PFAS, or PFAS exceeding a threshold level and further limits the categories of “textile articles” subject to the new requirements.
“Regulated PFAS” includes: (1) PFAS that a manufacturer intentionally adds to a product for a functional or technical effect; or (2) PFAS exceeding certain threshold levels. On January 1, 2025, the threshold level is 100 parts per million (“ppm”). On January 1, 2027, the threshold level decreases to 50 ppm.
“Textile articles” means:
- Apparel, which is defined by AB 1817 to include an extensive number of products, including:
- “Clothing items intended for regular wear or formal occasions, including, but not limited to, undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, costumes, vests, dancewear, suits, saris, scarves, tops, leggings, school uniforms, leisurewear, athletic wear, sports uniforms, everyday swimwear, formal wear, onesies, bibs, diapers, footwear, and everyday uniforms for workwear. Clothing items intended for regular wear or formal occasions does not include personal protective equipment or clothing items for exclusive use by the United States military.”
- Outdoor apparel, meaning “clothing items intended primarily for outdoor activities, including, but not limited to, hiking, camping, skiing, climbing, bicycling, and fishing.”
- Outdoor apparel for severe weather conditions such as those for “extreme and extended use products designed for outdoor sports experts” and not marketed for general consumers for sports activities like offshore fishing, offshore sailing, whitewater kayaking, and mountaineering.
- Shower curtains
Certain items are explicitly excluded from the definition of textile articles, including items regulated by the Safer Consumer Products Program (like carpets, rugs, and treatments for textiles and leathers), vehicles, vessels, filtration media and filter products, textile articles used in laboratory analysis and testing, aircrafts, stadium shades, and architectural fabric structures.
While AB 1817 widely applies to manufacturers, distributors, and sellers, the crux of the compliance responsibility falls on manufacturers. AB 1817 requires manufacturers to use the least toxic alternative when removing regulated PFAS from textile articles. AB 1817 also requires manufacturers to provide distributors and sellers with a certificate of compliance that the textile article is free from regulated PFAS. Distributors and retailers are specifically exempt from being held in violation of AB 1817 if they relied in good faith on the certificate of compliance.
AB 2771 – Cosmetics
Similarly, AB 2771 prohibits persons and entities from the manufacture, sale, delivery, holding, or offering for sale any cosmetic product containing “intentionally added” PFAS. The definition of intentionally added PFAS differs slightly from the “regulated” PFAS in AB 1817. In AB 2771, intentionally added PFAS refers to either: (1) PFAS that a manufacturer intentionally adds to a product for a functional or technical effect, or (2) PFAS chemicals that are intentional breakdown products of an added chemical. AB 2771 does not set specific threshold limits in ppm as AB 1817 does.
Cosmetic products include those offered for retail sale or professional use that are intended to be “rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.”
Unlike AB1817, AB 2771 does not distinguish potential liability of manufacturers from distributors or retailers, and there is no retailer or distributor exemption like that of AB 1817. Businesses that deal with cosmetic products should carefully consider the comprehensive nature of AB 2771’s PFAS prohibition and consider avenues for compliance.
What Should Businesses in the Textile and Cosmetics Supply Chain Do Now?
Until January 1, 2025 when the laws go into effect, businesses in the supply chain should familiarize themselves with the scope of the new laws and develop plans for compliance.
Manufacturers of textiles articles should carefully evaluate whether items contain levels of PFAS that falls within the definition of “Regulated PFAS” because this may determine whether those items can be offered for sale in California. Distributors and retailers selling textiles should develop a system to require certificates of compliance from their manufacturing suppliers to limit the potential for liability under the law.
Entities in the supply chain for cosmetics should also determine whether any products contain “intentionally added” PFAS. Since the law does not distinguish any liability exemptions for distributors and retailers, even those businesses further down the supply chain should develop a plan for ensuring compliance.
For assistance in understanding how either AB 1817 or AB 2771 may impact your business or industry, and for advice on developing plans for compliance, please feel free to contact attorneys in Downey Brand’s Environmental Law Practice Group to help you understand the implications of these new laws.
Sophia Castillo is a partner in the San Francisco office of Downey Brand. She specializes in Proposition 65 and toxics law, and publishes an overview of Prop. 65 claims and trends each month with her colleague Patrick Veasy. Sophia can be reached at [email protected], or via her LinkedIn page.
Alexandra “Ally” Lizano is an associate in Downey Brand’s Sacramento office. Ally routinely works on matters involving water quality, environmental enforcement defense, and toxic tort litigation, including Proposition 65. Ally can be reached at [email protected], or via her LinkedIn page.