California adds teeth to PFAS laws covering juvenile products, textiles, and food packaging

On September 29, 2024, California Governor Gavin Newsom signed into law AB 347, adding comprehensive registration, certification, and enforcement provisions to California’s existing and forthcoming restrictions on the use of PFAS in covered products: juvenile products, textile articles, and food packaging.

The registration requirement may be the most expansive in recent memory. It will require all manufacturers of covered products, including thousands of apparel companies doing business in California, to register with the state, pay a fee, and certify compliance by 2029, with no exemption for small businesses or de minimis California sales.

In addition to new industry obligations, the law appoints California’s Department of Toxic Substances (DTSC) as the lead agency with jurisdiction over registration and enforcement of California’s PFAS restrictions for covered products.

DTSC is also tasked with identifying approved PFAS testing methods and laboratory accreditations. Such oversight could have far-reaching implications given California’s broad definition of “PFAS” as “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom,” and the continuing development of analytical methods for identifying and quantifying PFAS compounds.

Covered products

AB 347 draws on California’s existing PFAS laws for three product categories that currently restrict “regulated PFAS.” In general, regulated PFAS are (i) PFAS intentionally added to a product or product component that have a functional or technical effect in the product, including PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical and (ii) incidental PFAS content, purportedly measured as total organic fluorine above a specified concentration. Covered products, and their existing restrictions in California, include: 

• Juvenile products: Prohibition as of July 1, 2023 on the manufacture or distribution of juvenile products, generally defined as “products designed for use by infants and children under 12 years of age,” that contain regulated PFAS (Health and Safety Code Section 108945)
  
  
• Textile articles: Prohibiting intentionally added PFAS and total organic fluorine at or above 100 parts per million (ppm) as of January 1, 2025 and 50 ppm as of January 1, 2027 in textile goods, generally defined as an “item made in whole or part from a natural, manmade, or synthetic fiber, yarn, or fabric … customarily and ordinarily used in households and businesses” (Health and Safety Code Section 108970), and
  
  
• Food packaging: Prohibition as of January 1, 2023 on regulated PFAS in food packaging, generally defined as “nondurable package, packaging component, or food service ware [] intended to contain, serve, store, handle, protect, or market food … comprised [of] paper, paperboard, or other materials originally derived from plant fibers” (Health and Safety Code Section 10900).

Notably, the legislation does not include cosmetic and cookware manufacturers, though they are subject to similar restrictions on regulated PFAS. The expansion of AB 347’s regulatory scheme to include those industries remains a distinct possibility for the future.

Registration and certification

On or before July 1, 2029, in accordance with AB 347, a manufacturer of a covered product must register with DTSC and provide the (i) name and description of the covered product, (ii) the applicable registration fee, and (iii) a statement of compliance certifying that each covered product complies with the applicable covered PFAS restriction. Industry may, in practice, have additional time, as the law specifies that DTSC shall enforce the registration requirement on or after July 1, 2030.

Testing disclosures

In addition to requiring a statement of compliance, DTSC is granted new authority to demand that manufacturers demonstrate compliance with applicable PFAS laws by providing technical documentation, including test results performed using DTSC-approved analytical methods. It is unclear whether at the time of any such demand, a failure to disclose DTSC-approved testing will result in penalties, in which case industries may be required to conduct costly new rounds of testing.

DTSC oversight

As mentioned, the legislature has instructed DTSC to investigate and publish “accepted methods for testing whether a covered product complies with the covered PFAS restrictions and appropriate third-party accreditations for laboratories.” DTSC must publish its list of accepted methods and accreditation standards by January 1, 2029.

The law also contemplates testing by DTSC, which may “procure and test any covered product for compliance … by selecting and testing randomized samples of covered products from a cross section of retailers[.]” DTSC’s testing, including testing performed in connection with enforcement activities, “may be done by selecting and testing randomized samples of covered products from a cross section of retailers or by any other process specified by the department in regulation.”

Enforcement

California restrictions on regulated PFAS in covered products are now backed up by DTSC’s enforcement jurisdiction and civil penalties of at least $10,000. DTSC also has broad latitude to devise “on a case-by-case basis” its own “enforcement mechanism[s].” However, a penalty of no less than $10,000 is required for the first violation, and DTSC has discretion to impose variable penalties for additional or continuing violations.

In addition to a monetary penalty, AB 347 grants the Attorney General power to seek a temporary or permanent injunction requiring compliance with the law and lowers the burden for seeking this relief. In seeking an injunction against ongoing or future violations, DTSC need not show the lack of an adequate remedy at law or irreparable damage or loss.

AB 347 also expressly preserves all other enforcement provisions authorized by law, including litigation under California’s Unfair Competition Law brought by consumers.

Key takeaways

Although these newly enacted enforcement provisions may impose significant costs when businesses, especially small businesses, are required to register and possibly conduct new testing in 2029, the law gives DTSC authority to provide much-needed clarity to industries struggling to comply with California’s existing PFAS restrictions.

AB 347 may also be considered the legislature’s implicit acknowledgement that those laws already on the books are neither enforceable, as no agency previously had jurisdiction, nor practical, as there is no standard or state-approved PFAS testing method for many, if not most, covered products.

Looking ahead, industry engagement with DTSC will likely be critical to ensuring that the PFAS testing methods it adopts are appropriate for each category of covered products and do not invite further litigation – particularly consumer class litigation – against businesses targeted on the basis of improper and unreliable testing.

Additionally, although California’s overbroad statutory definition of PFAS includes potentially thousands of substances, the vast majority of which have never been assessed for any hazard, AB 347 provides an opportunity to engage with the State on these critical questions of scope, necessity, and cost.

For more information

DLA Piper’s PFAS Task Force closely tracks legislative and regulatory trends in the US and internationally. We assist businesses across industries in navigating the evolving PFAS regulatory landscape and designing efficient and effective compliance programs. Please contact the authors with questions or other inquiries.