California Legislature Aims Two More Nails at the PFAS Coffin

One bill could affect all types of products on the market, while the other is narrowly focused on a single product category. Both have now been read twice and amended at least twice.

Senate Bill 903

Senate Bill 903 would, beginning January 1, 2032, prohibit the distribution, sale, or offering for sale of any product — whether for personal, residential, commercial, or industrial use — that contains intentionally added PFAS, unless:

• The use of PFAS in a product or product category is currently unavoidable, as determined by the Department of Toxic Substances Control (DTSC) and so identified on its website;
• The presence of PFAS in a product or product category is governed by federal law that preempts state authority; or
• The product is previously used.

Demonstrating the unavoidability of a PFAS use in a product or product category sets a high bar under SB 903. When petitioned by a manufacturer of a product or an association of manufacturers of a product or product category to determine whether a use is currently unavoidable, DTSC must consider the broadest reasonable product category for that product. It may consider a use unavoidable only if it finds that (1) no safer alternatives to PFAS are reasonably available, (2) the function of PFAS in a product is necessary for the product to work, and (3) the use of PFAS in a product is critical for health, safety, or the functioning of society.

Up to this point, the bill is very similar to a Maine law enacted in 2021 and the conditions subsequently adopted by the state for manufacturers seeking Currently Unavoidable Use (CUU) determinations. (Minnesota also has a similar law but has not yet established rules for CUU determinations.) However, SB 903 appears to go one step further than Maine or Minnesota. The DTSC may not consider a use to be unavoidable if (1) a peer-reviewed, publicly available study has demonstrated the viability of safer alternatives to PFAS in the product or product category at issue, or (2) if the sale of the product or product category is banned in another state or another country because it contains PFAS. Thus, a ban in the European Union (EU), for example, or even in a single Member State within the EU, could prevent a CUU determination and thus automatically trigger a ban in California. In addition, the DTSC would be allowed to establish earlier effective dates than 2032 for a given product category, if feasible, and could also entertain public petitions requesting earlier effective dates, based on these same conditions.

Assembly Bill 2515

Effective January 1, 2025, existing Minnesota law bans the sale or distribution for sale of any menstruation products containing PFAS that have been intentionally added to perform a specific function. California Assembly Bill 2515 proposes a similar ban with the same effective date but would go one major step further. The proposed ban would also cover those products or product components containing any PFAS at or above 10 ppm, measured as Total Organic Fluorine (TOF), effective January 1, 2027. The bill authorizes the DTSC to adopt the necessary regulations for adopting and enforcing its provisions. (This bill replaces AB 246, which was passed by both the Assembly and the Senate earlier in the 2023-24 Legislative Session but was vetoed last October by the governor because it failed to identify the state agency responsible for its implementation.) California, unlike most other states, has already set numerical limits on the presence of any PFAS, even if incidentally present, in certain other product categories – food packaging and juvenile products – but that limit is 10 times higher at 100 ppm, as measured by TOF. AB 2515 appears to be the first time a limit as low as 10 ppm has been proposed for any consumer product. (It is worth noting that no analytical method for determining TOF is identified in the bill.)

In terms of enforcement, AB 2515 goes one step further than AB 246, the bill it is replacing. Similar to Proposition 65, it would allow any person (not just the Attorney General or local government attorneys or prosecutors) to bring a civil action in court for a violation resulting in an alleged injury, and a prevailing plaintiff would be entitled to an award of attorney’s fees and costs.

Takeaway

Since AB 246 was passed overwhelmingly by the legislature prior to its veto by the governor, it seems highly likely that its replacement, AB 2515, will ultimately be passed and signed into law. Combined with the possible passage of SB 903, it is clear that the window for permissible uses of PFAS, even fluoropolymers that may present little to no toxicity, is rapidly closing in California and, as a consequence, in the rest of the nation.