Legal Alert

California Bans PFAS in Cosmetics and Textiles

By Erin M. Carter, Aliza R. Karetnick, and Brendan K. Collins
October 6, 2022

Summary

California enacted two bills last week banning all per- and polyfluoroalkyl substances—known as PFAS and colloquially as “forever chemicals”—in textiles and cosmetics, effective in 2025. Governor Gavin Newsom signed the bills on September 29, the same day he vetoed a third bill that would have required companies to report all items sold in the state containing PFAS. The enacted bans will present a significant challenge to the textile and cosmetic industries, which have been inundated with PFAS-related consumer products litigation.

The Upshot

  • AB 2771 bans the manufacture and sale of cosmetics containing “intentionally added” PFAS beginning January 1, 2025. The bill is a significant expansion of the current California standards because it applies to over 12,000 types of PFAS, rather than a select few.
  • AB 1817 bans the manufacture and sale of textiles containing PFAS by January 1, 2025, with a three-year extension for extreme wet-weather gear and exemptions for certain personal protective equipment and other textiles, such as carpets.
  • Other states, such as Washington, Maine, and Colorado have passed similar bans on PFAS in consumer products.
  • The veto of AB 2247—a bill that would have created a publicly accessible database to track the sources and presence of PFAS in consumer goods sold in California—is a win for the broad coalition of industries that lobbied against it.

The Bottom Line

California had already enacted bans on certain types of PFAS in cosmetics and other consumer products, but the new laws substantially expand current law because they apply to all types of PFAS, of which there are thousands. California is one of the world’s largest economies, and by far the largest market in the United States. Bans on intentionally added PFAS in cosmetics and textiles are likely to have a nationwide, if not global, impact on the textile and cosmetics industries. Manufacturers and retailers of consumer products must prepare for compliance by the beginning of 2025.

California PFAS Ban in Cosmetics

Under AB 2771, as of January 1, 2025, no person shall manufacture, sell, deliver, hold, or offer for sale in California any cosmetic product that contains intentionally added PFAS. The Assembly Floor Analysis notes that the bill addresses two concerns: consumer exposure to PFAS through use of cosmetics, and potential contamination of wastewater through the disposal of the cosmetic products.

The law broadly defines PFAS as a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. Given that the effects on human health and the environment have only been determined for a select few types of PFAS, the lack of distinction between the thousands of PFAS in AB 2771 is jarring. To further complicate the law, testing for these 12,000+ PFAS in cosmetics is not commercially available. Notably, California previously banned a target group of the most studied PFAS in cosmetics under the 2020 Toxic-Free Cosmetics Act.

Importantly, the law specifically targets “intentionally added” PFAS, rather than any PFAS that may be present in the product due to impurities or contamination. “Intentionally added” includes PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect on the product or PFAS that are intentional breakdown products of an added chemical. While the effect of AB 2771 is still very broad, the inclusion of “intentionally added” may provide some protection for manufacturers in potential enforcement actions.

AB 2771 lacks clarity on several key issues: the method of measuring PFAS, sell-through dates, and enforcement measures. First, California prohibits the sale of consumer products designed for children, food packaging, compostable materials, and recyclable materials containing a PFAS content at or above 100 ppm as measured by total organic fluorine, but AB 2771 contains no such information as to how PFAS should be measured. No official method currently exists for testing total organic fluorine, but the U.S. Environmental Protection Agency (EPA) is currently developing one. Second, AB 2771 contains no provision for sell-through dates, which creates further compliance challenges for the cosmetics industry. Lastly, the law lacks any enforcement mechanism, though California’s Unfair Competition Law permits private citizens to bring suits against businesses for alleged “unlawful” acts.

California PFAS Ban in Textiles

Under AB 1817, as of January 1, 2025, no person shall manufacture, distribute, sell, or offer for sale in California any new textiles that contain PFAS. The law applies to apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths. The law notably excludes several textiles, some of which are known to typically contain PFAS, such as carpets; industrial filters; vehicle, aircraft, or vessel textiles; architectural fabric structures; textiles used in laboratories; military clothing; and personal protective equipment such as firefighting hats, gloves, and coats.

PFAS, known for their waterproofing properties, are often used in weather-resistant outdoor gear. The law creates specific provisions for outdoor apparel used for severe wet conditions, providing a three-year extension to January 1, 2028, for compliance. However, as of January 1, 2025, outdoor apparel containing PFAS must include a disclosure that it is “Made with PFAS chemicals.”

Consumer Products Litigation Trends

PFAS litigation has historically centered on environmental statutes and associated common law claims, but over the past several years, one of the fastest growing types of PFAS litigation is in the consumer products space. Cosmetics, food packaging, car seats, microwavable popcorn, feminine hygiene products, and dental floss are just a few of the latest targets of PFAS-related consumer claims. These lawsuits are being brought by individuals as well as class actions in jurisdictions across the country, especially in California, New York, Illinois, New Jersey, and the District of Columbia.

In broad strokes, these plaintiffs typically bring claims of fraudulent marketing and false advertising based on the omission of PFAS disclosure in marketing materials and/or general statements that the products or brand is sustainable, safe, clean, or green. This litigation trend is particularly novel because these statements are often based on brand-wide statements in Environmental, Social, and Governance (ESG) and corporate sustainability reports, rather than product-specific marketing materials, which are traditionally the basis for fraudulent marketing or false advertising claims.

In addition to California, other states such as Washington, Maine, and Colorado have passed similar bans on PFAS in consumer products. The addition of California’s huge market to the list of jurisdictions with bans could accelerate the trend. Even before compliance is required under the two new laws, plaintiffs may point to the findings of facts in the laws to buttress their claims of human health or environmental impacts from the PFAS at issue. Meanwhile, California’s relatively short, two-year window for compliance presents significant hurdles for product manufacturers, particularly those with longer sell-through times.

Ballard Spahr’s multidisciplinary team draws from the firm’s applicable transactional, regulatory, and litigation practices to advise and represent manufacturers, distributors, and retailers across a broad range of legal areas, including environmental and other regulatory compliance, government affairs, product liability litigation, and ESG matters, as well as finance, employment, business transactions, and others. Please contact one of the authors for more information.

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