In a major move by California that may be but a harbinger of a dramatic sea change in banning or severely restricting the inclusion of hundreds of chemicals present in every-day consumer goods, California just imposed upon the consumer product industry (culminating, at least most likely for 2021, right before the end of October), a sweeping range of bans that likely will fundamentally disrupt the California consumer product economy.
Ostensibly driven by concern over the presence of PFAS and other chemicals loosely included in that family of compounds colloquially referred to as “forever chemicals,” and even in the absence of developed or well-understood science assessing the potential for human health risk, Governor Newson signed four bills in just one day in October that established new laws affecting food packaging, cookware and children’s mattresses, sets, strollers and the like, on the heels of the enactment of additional legislation and regulation passed earlier this year and last that has progressively been expanding both the scope and the magnitude of these impending bans and restrictions on the sale of consumer and commercial products containing PFAS in California.
There is no real question that the science surrounding PFAS, for example, is in its infancy – as observed even by the Agency for Toxic Substances and Disease Registry (ATSDR):
“Scientists are still learning about the health effects of exposures to mixtures of PFAS … more research will help scientists fully understand how PFAS affect human health.”
By contrast, at the federal level, the USEPA has chiefly dedicated its efforts to addressing the presence of PFAS and other so-called “legacy chemicals” within underground drinking water supplies, a core mandate with which the USEPA is charged by Congress, underscoring the impactful, yet potentially premature and disruptive nature of the recent California action, as it is aimed not at groundwater remediation but rather at a broad swath of manufacturing, commercial, and retail enterprises that likely do not know – and, moreover, likely cannot feasibly ascertain, whether their products are even subject to the new laws.
In a pronouncement by USEPA Administrator Michael Reagan that accompanied the much-heralded release on October 18 of the USEPA’s “PFAS Roadmap,” Administrator Reagan explained that the USEPA is “laser focused” on developing a “comprehensive, national PFAS strategy,” but not a reckless one. In fact, a cornerstone of the PFAS Roadmap is a multi-year strategy deploying a measured approach to refining the necessary scientific research while incorporating appropriate policies involving stakeholders affected by the PFAS Roadmap. Some insiders believe that the complexity of this task will take several years, at least, to be developed.
Not so in California.
By stark contrast, the majority of the recently enacted or promulgated PFAS California legislation and regulation affecting commerce either already is effective or will become effective by January 1, 2023, or within a year or two thereafter.
To help visualize the magnitude of this impact, below are some examples of product categories as to which PFAS content already has been, or soon will be, entirely or largely banned in California:
- Food packaging (including, for example, paper, paperboard and other plant-based packaging, packing components and other food service accessory items, such as containers, boxes, liners, wrappers, bowls, plates, and utensils, intended to contain or handle food, beverages and other foodstuffs) (AB1200)
- Cookware (including, for example, pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls and utensils) (AB1200)
- “Juvenile products” (meaning products principally aimed for use by children 12 and under) (AB652), including:
- Mattresses, cribs, bassinets and pillows
- Infant and child seats and child vehicle restraint systems
- Cosmetics (banning 13 chemicals within the PFAS class from being manufactured, sold, or offered for sale in California), effective January 1, 2025 (AB2762)
- Carpets and Rugs (designating carpets and rugs containing PFAS as priority products under California’s Safer Consumer Products (“SCP”) law, triggering a December 28, 2021 deadline for manufacturers, importers, distributors and retailers to submit an Alternatives Analysis Report, in response to which the use of the products can be restricted or banned) (22 Cal. Code Regs. §69506.1, §69506.6)
- Certain PPE (mandating notification of the presence of PFAS contained in certain personal protective equipment furnished to employers at high fire risk establishments, such as airports or refineries, effective January 1, 2022) (SB1044)
- Numerous Other PFAS-Containing Consumer Products as to which, pursuant to Proposition 65, the two most prevalent PFAS compounds, PFOA and PFOS, must be eliminated from the product or a warning must be given stating:
“This product can expose you to chemicals including perfluoroalkyl and polyfluoroalkyl substances, which are known to the State of California to cause cancer and birth defects or other reproductive harm. 27 Cal. Code Regs. § 25603(a)(2)(D).
The recent legislation and regulations banning and/or restricting PFAS in retail and commercial products in California poses a host of problematic compliance issues impacting businesses spanning the entire spectrum of the product supply chain – by way of example, consider the following three dilemmas:
- The above laws apply to “regulated PFAS” but, unlike other consumer product regulations governing chemical use or content, PFAS is not a distinct chemical such as, for example, BPA, which is a distinct compound with a unique chemical formulation and a specific Chemical Abstracts Service identifier number. Rather, PFAS is an acronym for a diverse group of on the order of 5,000 or more chemicals, as estimated by the Organisation for Economic Cooperation and Development (“OECD”), that are alike in classification in the sense that they share a fluorinated-based chemical structure, but which otherwise can demonstrate vastly different physical, chemical, biological and toxicological properties. The laws and regulations described above do not recognize or consider this paramount differentiating characteristic at all, meaning that these product bans may indiscriminately outlaw low risk (or no risk) useful product constituents in the absence of acceptable substitutes or sufficient time to develop acceptable substitutes.
- Likewise, while PFAS are commonly used in manufacturing a broad spectrum of consumer products, any PFAS chemical subgroup or particular chemical may only be present at very low concentrations, which presents enormous difficulties where there is no feasible method or protocol for ascertaining whether the banned product compound, or one of its degradation products, may be present in the consumer good. One need look no further than to the thorny, wasteful and often infeasible, decades-long, compliance difficulties that have been encountered by businesses endeavoring to comply with Proposition 65, which only regulates on the order of 1,000 chemicals, or about 20% of the number of chemicals estimated to be included within the PFAS grouping.
- Further to the foregoing, as noted, the two most prevalent PFAS compounds, PFOS and PFOA, already have been designated as carcinogens and reproductive toxins under Proposition 65, thus raising the stakes for a business manufacturing, importing or supplying a product containing PFAS for sale in California. Not only would this alone heighten the specter of liability under Proposition 65 but that, in turn, would potentially implicate other state consumer protection laws that are permitted to be predicated upon any underlying unfair business practices based practice or violation of law, such as California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et. seq.