October 12, 2023
Assembly bills banning PFAS in cleaning products, menstrual products, and artificial turf returned without signature, directed to DTSC
On Oct. 8, California Governor Gavin Newsom vetoed three bills that would have banned per- and polyfluoroalkyl substances (PFAS) in a variety of consumer products.
Assembly Bills 246, 727, and 1423 — which would have banned PFAS in menstrual products, cleaning products, and artificial turf or synthetic surfaces, respectively — received strong support from the California Senate last month. AB 246 met a unanimous 71-0 vote, AB 727 passed 65-11, and AB 1423 passed 64-9. If signed into law, these bills were expected to have significant impacts on product formulations, supply chains, and contract laboratories across the U.S.
Reason for vetoing all three PFAS bans
Governor Newsom explained his reasoning for returning the bills without signature in three nearly identical letters. In each one, he noted that these bills "do not identify or require any regulatory agency to determine compliance with, or enforce, the proposed statute," finding that each bill "falls short of providing enhanced protection to California consumers due to lack of regulatory oversight."
In each letter, the governor further noted that "[p]reviously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions." These previously enacted bans include AB 652 on juvenile products and AB 1200 on food packaging signed by the governor in October 2021 and AB 1817 on textiles signed in September 2022.
What's next for PFAS regulations for consumer products in California?
While Governor Newsom's rejection halts these three bills, that doesn't end the effort to regulate PFAS in consumer products. In each letter, the governor also said, "I strongly support the author's intent," and he directed the Department of Toxic Substances Control (DTSC) "to engage with the author and the Legislature and consider alternative approaches to regulating the use of these harmful chemicals in consumer products."
DTSC already included beauty, personal care, and hygiene products (among others); cleaning products; and building products and materials used in construction and renovation in their Three-Year Priority Product Work Plan (2021-2023) for further evaluation of the potential for chemicals from these products to cause adverse human health or environmental impacts.
DTSC previously adopted "Carpets and Rugs with Perfluoroalkyl or Polyfluoroalkyl Substances (PFASs)" and "Treatments Containing PFASs for Use on Converted Textiles or Leathers" as priority products for PFAS effective July 1, 2021, and April 1, 2022, respectively. According to DTSC, a priority product is a "consumer product that (1) contains one or more Candidate Chemicals that have the potential to harm people or the environment, and (2) has been formally listed in the California Code of Regulations through rulemaking." In the finalized regulatory text for both priority products, DTSC defined PFAS as "a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom, as defined by the California Environmental Contaminant Biomonitoring Program."
A growing national trend toward state regulation of PFAS
Despite this delay, manufacturers should continue to prepare for upcoming PFAS restrictions. Although regulation at the federal level is proceeding with attention to specific PFAS, California and other states are proposing and enacting regulation more broadly.
Several U.S. states have passed or are proposing PFAS regulations that vary considerably across product categories, chemical thresholds, testing standards, and compliance timelines. Proposed and passed state bills also vary in their requirements from outright bans to disclosure and product labeling or reporting requirements.
What Can We Help You Solve?
Exponent closely monitors the continually changing PFAS regulatory landscape to help clients prepare for new PFAS regulations. Our experts have years of experience investigating supply chains for PFAS sources, working with third-party laboratories to test materials and products for specific PFAS and total organic fluorine, and assisting clients in making decisions that suit their product lines and stewardship goals.