13 June 2022, by George Gigounas, Adam Baas, Stefanie Fogel and Allexanderia Bingham
California and New York legislators are pushing forward proposed legislation that regulates per- and polyfluoroalkyl substances (PFAS) content in textile products. In California, AB 1817 and AB 2247, if signed into law, will substantially change how California regulates PFAS in consumer products. In New York, a similar measure, SB S6291A, would prohibit intentionally added PFAS in apparel and the sale of items containing intentionally added PFAS.
These bills would ban key categories of textile products and, in California, impose major new reporting obligations on manufacturers of all consumer products. As initially drafted, California’s AB 1817 and AB 2247 may have been unworkable in scope: AB 1817 banned any product with total organic fluorine “at or above the practical quantitation limit.” That language risked banning products with even minute cross-contamination from any source of the nearly ubiquitous chemicals, including customer handling, store cleaning and many other potential sources. Recently proposed amendments to both bills more acutely focus on intentionally added PFAS in textiles, which reduces the risk of creating too broad a scope, but does not eliminate it.
Increasing regulation of PFAS-containing consumer products
The term PFAS refers to thousands of human-made fluorine compounds that do not occur naturally in the environment. Many PFAS are resistant to heat, water and oil and have been used for those properties in industrial and consumer product applications since the 1940s, including stain- and water-resistant fabrics, non-stick cookware, carpeting, cleaning products, paints and firefighting foams. PFAS do not easily degrade and break down slowly over time, raising concerns about potential impacts to the environment and human health.
Citing these concerns, several states have developed restrictions on the sale and use of PFAS-containing products. New York passed legislation banning the use of PFAS in food packaging. In December 2020, Governor Andrew Cuomo signed into law S.8817/A.4739-C, which broadly prohibits the use of all intentionally added PFAS in food packaging and prohibits anyone from distributing, selling or offering from sale any food in packaging that contains PFAS. The law will go into effect on December 31, 2022.
In October 2021, California Governor Gavin Newsom signed a similar law, AB 1200, prohibiting disposable food packaging from containing “Regulated” PFAS The bill has a clear scope, prohibiting only intentionally added PFAS or materials measuring 100 parts per million total organic fluorine (TOF) – a proxy measurement suggesting the presence of PFAS. The ban begins on January 1, 2023. Governor Newsom also signed a companion law, AB 652, prohibiting the sale, manufacture or distribution in California of juvenile products that contain “Regulated” PFAS, defined the same as in AB 1200.
California’s proposed PFAS legislation
But then, California’s legislature proposed to go much further. Proposed bills – specifically AB 1817 and AB 2247 – initially sought to take these PFAS bans to likely unworkable levels. As initially drafted, AB 1817 and AB 2247 would have imposed significant obligations on manufacturers of consumer products from product development and manufacturing to post-sale reporting. Current revisions to the bills resolve some, but not all, of the risks they present.
- AB 1817: Prohibiting the sale and distribution of textile articles containing intentionally added PFAS or total organic fluorine at 300 parts per billion
Introduced on February 7, 2022, AB 1817 initially would have prohibited the sale or distribution of any textile article that “contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS.” In the bill, “textile article” means goods customarily used in households and businesses, including costumes, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, bedding, towels, napkins and tablecloths. Specifically excluded are carpets, rugs and treatments containing PFAS for use in converted textiles and leathers.
AB 1817 initially defined the “Regulated” PFAS far more broadly than existing law, greatly expanding the number of products that would have – often arbitrarily – fallen within the law’s ambit. The bill understandably precluded PFAS “intentionally added” for a “functional or technical effect.” But it then expanded its scope to include textile articles with PFAS found “at or above the practical quantitation limit,” as measured in TOF. With this addition, AB 1817 departed radically from any other existing law in California or elsewhere. It would have prohibited any textile product that contained any amount of detectable TOF, even if that TOF was cross-contamination from a factory, a retail environment (eg, in-store carpets) or even a customer’s hands, furniture, shopping bags or other surfaces.
The latest revisions to AB 1817 provide mild relief from such a prohibition, which scientific and industry organizations have explained is unworkable and arbitrary – but the changes may not go very far towards alleviating these concerns. The most recent amendments to AB 1817 replace the “practical quantitation limit” language with a “300 parts per billion” TOF threshold. This threshold may be derived from a current practical quantitation limit of 280 parts per billion for some test methods and may still be unreasonably low if cross-contamination is to be excluded.
Regardless of its origin, the 300-part-per-billion threshold does not appear to be based on the same analysis that guided prior laws (which, as discussed above, generally use 100 parts per million as the prohibition threshold – a standard 333 times higher than 300 parts per billion). At a minimum, the change implicitly recognizes that TOF content is not indicative of the intentional presence of PFAS or even specific PFAS analytes. Additional discussions and challenges to this 300-parts-per-billion TOF standard are ongoing as AB 1817 passes from the California House of Representatives to the Senate for final amendment before possible passage into law.
- AB 2247: Creation of a publicly accessible reporting platform for PFAS-containing products
Introduced February 16, 2022, AB 2247 would require the Department of Toxic Substances Control to work with the Interstate Chemicals Clearinghouse to establish a publicly accessible reporting platform to collect information about PFAS and products or product components no later than January 1, 2025.
Like AB 1817, this bill originally used the problematic definition for “Regulated” PFAS. Unlike AB 1817, however, the bill has been amended to seemingly eliminate the problem – it would only apply to products with “intentionally added PFAS.” AB 2247 defines “intentionally added PFAS” as PFAS that a manufacturer has intentionally added to a product, a product’s components or a product’s ingredients and that have a functional or technical effect in the product, the product’s components or the product’s ingredients.
If passed, by July 1, 2025 – and by July 1 of each year after – a manufacturer of PFAS or a product or product component containing intentionally added PFAS that is “sold, offered for sale, distributed, or offered for promotional purposes in, or imported into” California would be required to register the product or product component on the publicly accessible reporting platform.
The bill’s purpose is to obtain “accurate data on how and how much PFAS are entering the state in any form” and to “characterize the real threats of further PFAS environmental contamination and human exposure…and develop the best practices for addressing them[.]” To further this purpose, the reporting platform would gather the following information about each product’s PFAS content, sales and manufacturer:
- The name and type of product or product component containing intentionally added PFAS
- The universal product code, or “UPC,” of the product or product component containing intentionally added PFAS
- How the PFAS are, or how the product or product component containing intentionally added PFAS is, used by businesses or consumers
- The specific names of all PFAS compounds in the product or product component containing intentionally added PFAS and the Chemical Abstracts Service Registry Number, also known as a “CAS Registry Number” or “CAS RN,” of each PFAS compound
- The amount of the product or product components sold, delivered or imported into the state
- The name and address of the manufacturer, and the name, address and phone number of a contact person for the manufacturer
Earlier drafts of AB 2247 authorized civil penalties for violations of the bill’s annual reporting requirements. The current draft makes the reporting requirement part of California’s hazardous waste control laws, the violation of which is a crime.
New York’s proposed PFAS legislation
New York’s proposed legislation, SB S6291A, has passed both the Assembly and Senate and would prohibit the use of PFAS substances in apparel. Specifically, the bill states that no person shall sell or offer for sale in New York any apparel containing PFAs substances as “intentionally added chemicals.”
Like California’s legislation, the bill defines “Intentionally Added Chemical” as “a chemical in a product that serves an intended function in the product component.” Importantly, the bill does not include the additional, confounding category in the California law, which includes any PFAS over 300 parts per billion. The bill also defines “apparel” broadly to include “clothing items intended for regular wear or formal occasions, including but not limited to undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, vests, dancewear, suits, saris, scarves, tops, leggings, leisurewear, formal wear, onesies, bibs, and diapers.” Professional uniforms or outerwear intended for extreme conditions are excluded from the bill’s reach.
If passed, the bill would go into effect on December 31, 2023.
PFAS legislation continues to rapidly evolve in California, New York and other states and at federal and global levels. Approaches taken vary, and some approaches are creating greater difficulties than others for regulated entities. Prudent manufacturers of consumer products will continue to monitor the changing legislative landscape. Please contact the authors with any questions.
 The law also requires disclosures for certain chemicals intentionally added to cookware items.
 See AB-1200, Plant-based food packaging: cookware: hazardous chemicals (https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB1200)