California bans regulated PFAS in clothing, textiles and cosmetics | Downey LLP Brand
On September 29, 2022, Governor Newsom signed into law AB 1817 and AB 2771, which prohibit the manufacture, distribution, sale, and offering for sale of new “textile articles” containing “perfluoroalkyl and polyfluoroalkyl regulated substances” (” PFAS regulated”). ) and cosmetic products containing intentionally added PFAS, respectively. AB 1817 and AB 2771 come into effect on January 1, 2025.
Context of the SPFA
PFAS are a class of chemicals that are toxic and very persistent in the environment. PFAS are often referred to as “eternal chemicals” because they are difficult to degrade in the natural environment, which means they persist in water, soil, air and our bodies. PFAS is linked to several adverse health conditions, including cancers, developmental disorders, and immune system disturbances. PFAS have traditionally been used in a wide variety of consumer products such as food packaging, kitchenware, cleaning products, clothing and personal care products. In recent years, the California legislature has focused its efforts on legislation to minimize PFAS in consumer products, including regulating the PFAS content of food packaging and cookware (AB 1200 (2021)), which will enter effective January 1, 2023.
AB 1817 – Textile articles
AB 1817 prohibits anyone from manufacturing, distributing, selling or offering for sale new “textile articles” containing 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 and further limits the categories of “textile articles” subject to the new requirements.
“Regulated PFAS” include: (1) PFAS that a manufacturer intentionally adds to a product for a functional or technical effect; or (2) PFAS exceeding certain thresholds. On January 1, 2025, the threshold is 100 parts per million (“ppm”). On January 1, 2027, the threshold level decreases to 50 ppm.
“Textile articles” means:
- Clothing, which is defined by AB 1817 to include a large number of products, including:
- “Clothing items intended for regular or formal occasion wear, including but not limited to underwear, shirts, pants, skirts, dresses, jumpsuits, jumpsuits, suits, vests, dancewear, costumes, sarees, scarves, tops, leggings, school uniforms, casual wear, sportswear, athletic uniforms, everyday swimwear, formal wear , onesies, bibs, diapers, shoes and everyday uniforms for work wear.Clothing items intended for regular wear or on formal occasions do not include personal protective equipment or clothing for use exclusive to the US Army.
- Outdoor clothing, i.e. “articles of clothing intended primarily for outdoor activities, including but not limited to hiking, camping, skiing, climbing, biking, and hiking. sin”.
- Extreme weather outdoor clothing such as those intended for “extreme and prolonged use products designed for outdoor sports experts” and not marketed to general consumers for sporting activities such as deep sea fishing, deep sea sailing , whitewater kayaking and mountaineering.
- Hand bags
- Shower curtains
Certain items are explicitly excluded from the definition of textile items, including items regulated by the Safer Consumer Products program (such as rugs, carpets, and textile and leather treatments), vehicles, containers, filtration media and filtering products, textile articles used in analysis and test laboratories, aircraft, stadium awnings and architectural fabric structures.
Although AB 1817 broadly applies to manufacturers, distributors and sellers, the bulk of the responsibility for compliance rests with the 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 liability for breach 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 manufacturing, selling, delivering, possessing or offering for sale any cosmetic product containing “intentionally added” PFAS. The definition of intentionally added PFAS differs slightly from that of “regulated” PFAS in AB 1817. In AB 2771, intentionally added PFAS refer to either: (1) PFAS that a manufacturer intentionally adds to a product to a functional or technical effect, or (2) PFAS chemicals that are intended degradation products of an added chemical. AB 2771 does not set specific ppm threshold limits like AB 1817 does.
Cosmetic products include those offered for sale at retail or for professional use which are intended to be “rubbed, poured, sprinkled or sprayed on, introduced into or otherwise applied to the human body to cleanse, beautify, promote attractiveness or modify appearance. ”
Unlike AB1817, AB 2771 does not distinguish the potential liability of manufacturers from distributors or retailers, and there is no retailer or distributor exemption like AB 1817 does.
What should companies in the textile and cosmetics supply chain do now?
Until January 1, 2025, when the laws come into force, companies in the supply chain must familiarize themselves with the scope of the new laws and develop compliance plans.
Manufacturers of textile articles should carefully evaluate whether articles contain levels of PFAS that fall within the definition of “regulated PFAS” as this may determine whether such articles may 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 cosmetics supply chain must also determine if any products contain “intentionally added” PFAS. Since the law distinguishes no liability exemptions for distributors and retailers, even companies down the supply chain should develop a plan to ensure compliance.