California Advances Bill to Ban Most PFAS Uses

Despite its progress, the bill faces strong opposition from industry and business groups.

Read the bill here.

Significant Expansion to the Definition of “Intentionally Added”

The bill significantly expands the definition of “intentionally added.” Most state legislation defines “intentionally added” as “PFAS added to a product that has a functional or technical effect in the product….”

However, the bill adds the interpretation that includes “PFAS intentionally used or produced during a product’s manufacture or processing that is introduced into or onto the product, whether or not it confers a functional or technical effect in the product. This includes any source of PFAS that is reasonably known to be present, including the use of processing agents, mold release agents, or fluorination….”

For instance, this would now encompass any PFAS used earlier in the manufacturing process that leaves a detectable but intentional trace of PFAS in the finished product.

Key Details

• Timelines: 
  • January 1, 2027: Prohibits the distribution, sale, or offering for sale a “covered product.” The bill defines “covered product” as cleaning products, cookware, dental floss, juvenile products, food packaging, and ski wax, except for previously used items and those preempted by federal law.
  • January 1, 2033: Extends the ban to all other products with “intentionally added PFAS” unless determined to be a “currently unavoidable use,” preempted by federal law, or previously used.
  • January 1, 2040: The ban would begin to prohibit products containing intentionally added PFAS including specific products like refrigerants, solvents, propellants, and clean fire suppressants, with similar exceptions for unavoidable uses.
• Regulatory Framework: The California Department of Toxic Substances Control (DTSC) must adopt regulations by January 1, 2027, including application fees and criteria for exemptions, with all application fees being deposited in the PFAS Oversight Fund. Funds from this account, upon legislative appropriation, will be used to cover the department’s costs of administering the act.
• Industry Concerns: Opponents argue the bill threatens economic stability, creates uncertainty, and challenges DTSC’s capacity to implement regulations efficiently. Calls for exemptions, particularly for fluoropolymers, remain contentious.

If enacted, California would join Minnesota and Maine as the third state to implement such a ban.

Implications for Businesses

The DTSC is required to reassess any exemptions every five years, adding to business uncertainty. Companies using PFAS must demonstrate necessity and the absence of safer alternatives. The bill could significantly impact sectors like clean energy, housing, semiconductors, and health care by potentially restricting critical products.

Stay informed on legislative developments that may affect your industry operations and compliance strategies. The Consumer Products group at ArentFox Schiff is available to answer questions about how your company can address risks of PFAS regulation enforcement both in the contractual and litigation contexts. Please feel free to reach out to the authors or any attorney on those teams.