In a continuing effort to address concerns surrounding consumer goods containing perfluoroalkyl and polyfluoroalkyl substances (PFAS), a broad class of chemicals commonly referred to as “forever chemicals,” the California legislature passed AB 2247 on Aug. 30, 2022. If the measure becomes law, it will require the registration by 2026 of all products sold, distributed or imported into the state of California containing intentionally added PFAS, with few exceptions. Violations of this law would be subject to civil, but not criminal, penalties. Gov. Newsom can either sign or veto the law by Sept. 30, 2022, or the bill will become law without his signature.
Unlike prior PFAS legislation in California, this bill is not restricted to particular industries or types of PFAS. As a result, it has garnered significant opposition from industry groups including the California Chamber of Commerce and the Chemical Industry Council of California, and “no” votes from moderate Democrats in both chambers. Despite organized opposition, AB 2247 may nonetheless become law because the Newsom administration may find it strikes a balance between consumer protection and an outright ban at a time when the federal government and individual states are increasing scrutiny of products containing PFAS.
What Would AB 2247 Require?
AB 2247 requires a person or entity that manufactures or imports products or product components sold or distributed in California with “intentionally added PFAS” to publicly register the product on or before July 1, 2026. Thereafter, a manufacturer or importer must register products sold during the prior calendar year by July 1 of each year. Where multiple entities satisfy the definition of a “manufacturer” or “importer” of a covered product and each have an obligation to report the same information, AB 2247 allows for one entity to report on behalf of any others and leaves it up to the entities to decide who shall report. Incorrect reporting exposes all entities to a violation, including the non-reporting entities relying on another entity to report on their behalf.
Registration information must include, as applicable:
- Name and type of product or product component containing intentionally added PFAS;
- UPC of the product or component;
- Purpose or function of the intentionally added PFAS;
- Identity and amount of all PFAS compounds;
- Total organic fluorine in the product or product component if the amount or weight of each intentionally added PFAS component is not known;
- Amount or number of product or product components sold, delivered or imported in the prior calendar year; and
- Name and address of manufacturer and contact person.
These requirements do not apply to regulated drugs, medical devices, dietary supplements, medical equipment or products intended for animals. The legislation also provides authority for the provision of technical assistance in helping manufacturers comply with the legislative requirements.
The legislation also tasks the Department of Toxic Substances Control (DTSC) to contract with an “existing multistate chemical data collection entity,” such as the Interstate Chemicals Clearinghouse, to establish a data collection interface that manufacturers and importers can use to report PFAS in products sold in California. The bill emphasizes the reporting interface should “streamline and facilitate data reporting” with similar requirements of other states and jurisdictions. The legislation also provides for public access to the registry.
AB 2247 in Context
If AB 2447 becomes law, it will add to California’s existing PFAS laws—such as banning PFAS in children’s products as of 2023, prohibiting PFAS in food packaging as of 2023, requiring disclosure of PFAS in cookware as of 2024, and restricting PFAS in cosmetics[1] as of January 2025—and DTSC’s regulations designating carpets and rugs as well as converted textiles and leathers containing PFAS as a “Priority Products” under the California’s Safer Consumer Products Program.
It is unclear what format information would be provided to consumers via the public interface. While some may argue that transparency in this area is key, there may be concerns with whether the public can readily digest the information AB 2447 purports to provide. In the event questions from the public arise from the information registered, it is also unclear who the public will be directed to in responding to those questions and whether the state will provide any educational services or materials.
While concerns about risk management may arise from this type of legislation, this may be seen as a strong step forward in ensuring information supporting the “polluter pays” principle is available, especially at a time where EPA has proposed PFOA and PFOS to be designated as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
AB 2247 tracks other state legislatures that have similarly turned their focus to requiring manufacturers to report or disclose PFAS in products. For example, in 2021, Maine passed legislation requiring registration of products with PFAS starting in 2023 (and requiring phaseout of all nonessential uses by 2030). Starting in January 2024, Colorado will require manufacturers of covered cookware to disclose intentionally added PFAS on product packaging. In the most recent legislative session, the Minnesota, New York, New Hampshire and Vermont state legislatures introduced bills to require reporting, disclosure or labeling of products containing PFAS.
Next Steps
As states continue to consider and pass legislation regulating PFAS in consumer products, manufacturers and importers of products containing PFAS will need to evaluate the scope of each state’s laws and regulations to avoid violations. Manufacturers and importers should also consider how they will respond to questions that will undoubtedly arise from the public as a result of this legislation as well as other legislation that has passed or is pending in other states. Regulated companies should also consider how to address multi-entity reporting obligations and possible indemnity concerns through relevant contractual agreements. Covered entities concerned with public access to this data will need to consider if or how confidential business information may be protected. Finally, 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.
[1] In 2020, California enacted legislation to ban 13 types of PFAS in cosmetics by 2025. On Aug. 22, 2022, the California legislature moved to extend the ban to all intentionally added PFAS in cosmetics by 2025.
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