CA Governor Vetoes PFAS Reporting Bill but Signs Onto PFAS Bans for Cosmetics and Apparel

Brownstein Client Alert, Oct. 7, 2022

California Gov. Gavin Newsom has vetoed AB 2247, which would have required registration of all goods containing perfluoroalkyl and polyfluoroalkyl substances (PFAS), but signed AB 2771 and AB 1817, which will restrict intentionally added PFAS in all cosmetics and most apparel, respectively, by Jan. 1, 2025.

We previously wrote about AB 2247, which would have required registration by 2026 of all products containing intentionally added PFAS.

As previously reported, AB 2247 garnered significant opposition from industry groups, including the California Chamber of Commerce and the Chemical Industry Council of California. They raised concerns with the broad definition of PFAS that did not account for the health and safety profiles, or potential for exposure of, individual PFAS compositions. Nor did the bill consider potential federal regulations regarding reporting of PFAS. The bill also did not contain protections for confidential business information or trade secrets.

In his veto statement, Gov. Newsom suggested that the bill may be premature, given the U.S. Environmental Protection Agency's (EPA) pending rulemaking to require reporting of PFAS. He also cited the bill's several-million-dollar price tag and California's lower-than-expected revenues in the next fiscal year. Gov. Newsom's statement leaves open the possibility for the bill's advocates to try again depending on EPA's actions and the California budget.

Now signed by Gov. Newsom, AB 2771 will ban the manufacture, sale, delivery, holding or offering for sale of any cosmetic product that contains intentionally added PFAS as of Jan. 1, 2025. Under the companion apparel bill, AB 1817, as of Jan. 1, 2025, no person may manufacture, distribute, sell or offer for sale new textiles containing regulated PFAS, except for "outdoor apparel for severe wet conditions." The term "outdoor apparel for severe wet conditions" appears susceptible to interpretation, being defined as clothing items intended primarily for outdoor activities that are "extreme and extended use products designed for outdoor sports experts for applications that provide protection against extended exposure to extreme rain conditions or against extended immersion in water or wet conditions, such as from snow, in order to protect the health and safety of the user and that are not marketed for general consumer use."

Under the new apparel law:

Importantly, in both pieces of legislation, PFAS is broadly defined as "a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom." Intentionally added PFAS is defined as both PFAS chemicals intentionally added by a manufacturer and PFAS chemicals that are the intentional breakdown products of an added chemical. AB 1817 further defines "regulated PFAS" as intentionally added PFAS or the presence of PFAS above 100 parts per million (as of Jan. 1, 2025) or 50 parts per million (as of Jan. 1, 2027).

States continue to express interest in regulating PFAS, particularly in daily consumer items. Manufacturers, distributors and retailers will need to evaluate the scope and intersection of each state's laws, plan for and comply with disclosure requirements and continue to evaluate and implement alternatives to PFAS.

California's rejection of a PFAS registry could be a sign that states are hesitant to develop general reporting requirements in anticipation of EPA action and are more likely to take an industry-specific approach to banning or severely restricting PFAS in common consumer products pending EPA action. Additionally, the veto of AB 2247 based on high fiscal impact, even for a state as populous as California, demonstrates a lingering concern with states seeking to tackle PFAS legislation, and the respective costs and benefits of future legislation will likely draw continued scrutiny.

Despite the veto, it is important to note that two PFAS-related bills were signed into law, adding to California's suite of previously enacted PFAS restrictions. This is consistent with trends occurring throughout the country, but states are addressing the issue differently. In addition to tracking various state legislation, it is critical not to lose sight of the EPA pending rule on the hazardous substance designation and the associated impactful related CERCLA liability. It is of utmost importance in this developing regulatory landscape that businesses audit their supply chains and distribution end points to be prepared.