California Ban on PFAS Chemicals to Take Effect in 2025
Law firms analyzing the impact of two bills that would ban "forever chemicals" in textiles and cosmetics said that while California's ban is not as broad as the one that passed earlier in Maine, its earlier effective date and the size of the California economy make it consequential.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Ballard Spahr attorneys wrote earlier this month that the governor vetoed a related bill that would have required companies to report every item sold in the state that contains per- and polyfluoroalkyl substances, or PFAS.
The textile ban begins in 2025, but extreme wet-weather gear manufacturers and sellers have another three years to prepare. It does not apply to carpets, goods for military use, or firefighting clothing.
However, raincoats that use PFAS will have to have labels that say they were made with PFAS chemicals starting in 2025.
"The law applies to apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths. The law notably excludes several textiles, some of which are known to typically contain PFAS, such as carpets; industrial filters; vehicle, aircraft, or vessel textiles; architectural fabric structures; textiles used in laboratories; military clothing; and personal protective equipment such as firefighting hats, gloves, and coats," the Ballard Spahr blog post said.
Kelley Drye lawyers wrote: "The law also requires a manufacturer to use the 'least toxic alternative' when replacing regulated PFAS in textile articles. The term 'least toxic alternative' is not defined in the legislation but presumably envisions a process similar to the 'Alternatives Analysis' required for manufacturers of products subject to the state’s Safer Consumer Products program."
Similar bills have also passed in Washington state, Colorado and Maine. However, many states have banned PFAS in at least some uses, such as food packaging.
"While the California ban is among the most aggressive legal prohibitions related to PFAS in products, the scope of the ban does not go as far as recent legislation adopted in Maine, which applies to all products containing intentionally added PFAS (unless for 'unavoidable uses' which have yet to be defined)," Kelley Drye lawyers wrote.
The American Chemical Council argues that there is no scientific underpinning to the idea that PFAS coatings on textiles are harmful to human health. The group wrote that C6 Fluorotelomers "are widely used in textiles applications. For many applications of C6 Fluorotelomers, no suitable alternatives exist or have been identified that can match these performance benefits. This performance is critical for applications such as Personal Protective Equipment (PPE) for healthcare workers, where C6 Based Fluorotelomers provide the chemical barrier necessary to protect healthcare personnel against contact with microbiological contaminants, including blood-borne pathogens."
Kelley Drye lawyers, writing about the earlier Maine law, noted, "Unsurprisingly, environmentalists and industry-members are clashing on the merits of the restrictions, with the former heralding it as a guiding light for other states to follow, and the latter fearful that it is the latest contribution to a balkanized regulatory system that will paralyze industry and deprive consumers of essential goods.
"The 'unavoidable use' exception to the pending ban is the subject of a rulemaking process by the Maine Department of Environmental Protection (“DEP”) and awaits further detail. Depending on the nuances of this exception, the law could very well ban a vast range of products. Compliance for many companies is expected to be difficult, and given already strained supply chains, could result in certain products not being sold in the state altogether."