If you are a manufacturer or distributor of products with textile components in the U.S., then you’re likely aware that the effective dates for states’ laws prohibiting the sale of certain consumer products with intentionally-added per- and polyfluoroalkyl substances (PFAS) are quickly approaching. In this blog post, we focus on: (i) what manufacturers should be doing to achieve compliance with California’s January 1, 2025 deadline for PFAS restrictions on textiles, and (ii) the latest on laws coming out of California that address the compliance and enforcement of additional PFAS restrictions.
This blog post focuses on California’s unique statutes restricting PFAS in textile articles for two reasons. First, currently, California is the only state that imposes a threshold for regulating the incidental presence of PFAS on products (as opposed to the intentional application of PFAS only), which has the potential to cover a broader range of products than in states that take the intentional application approach. Second, it is likely that your business distributes products into California given the state’s significant market presence.
I. Textile Article Manufacturers Should Prepare for Effective Dates
In California, commencing January 1, 2025, the manufacture, distribution, or sale of new—not used—textile articles containing PFAS that are either intentionally added or present at levels exceeding 100 parts per million (“ppm”) total organic fluorine, will be banned. See “Regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS” under Cal. Health & Saf. Code § 108970. Also by January 1, 2025, manufacturers will need to provide certificates of compliance confirming that their products meet California PFAS thresholds available to their distributors. The acceptable PFAS level decreases to 60 ppm on January 1, 2027.
If you have not taken steps to prepare for these approaching deadlines, it is not too late. Key action items that you should prioritize include:
- Identify products that you manufacture that reasonably fit within the definition of “textile articles”—“textile goods of a type customarily and ordinarily used in households and businesses, and include, but are not limited to, apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths;” or “apparel”—“clothing items intended for regular wear or formal occasions, including, but not limited to, undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, costumes, vests, dancewear, suits, saris, scarves, tops, leggings, school uniforms, leisurewear, athletic wear, sports uniforms, everyday swimwear, formal wear, onesies, bibs, diapers, footwear, and everyday uniforms for workwear.”
- Identify which of those items currently have PFAS intentionally applied or that may be exposed to PFAS in the manufacturing process that would lead to incidental contamination.
- Perform laboratory testing on products that fit within the definition of textile articles/apparel to confirm that incidental contamination does not exceed the 100 ppm threshold.
- Identify products in your current inventory that will not meet the PFAS restriction requirements and determine how best to manage the distribution of those products to avoid distributing them into states where you would not comply with PFAS laws.
- Once you have identified the extent of products that are covered by the laws and the presence (or absence) of PFAS, draft your certificate of compliance to address the covered products and provide that certificate to your distributors.
In the end, strategic business decisions will need to be made on how to best manage existing inventory that does not meet PFAS laws and how you will eliminate PFAS application going forward.
II. Updates on Additional PFAS Requirements
In September of 2024, California passed AB 347, which adds additional requirements for manufacturers of “covered products”—juvenile products, textile articles, and food packaging (it notably does not include cosmetics or cookware). AB 347 requires manufacturers to register and test their covered products and provides the enforcement and compliance mechanisms for this new law. AB 347 adds to the requirements for compliance under previously enacted AB 1817 (Cal. Health & Saf. Code § 108970-108971). Key takeaways from AB 347 include:
- Regulating Agency: The law requires the Department of Toxic Substances Control (“DTSC”) to adopt regulations for these new laws by January 1, 2029,and then to enforce and ensure compliance with those provisions and regulations on and after July 1, 2030.
- Covered Product Registration: Manufacturers of a covered product will be required to register with DTSC the name and description of the covered product and pay a to-be-determined registration fee. The registration must also include a statement of compliance certifying that each covered product meets applicable PFAS restrictions. Note that this certificate of compliance is in addition to the certificate of compliance to be provided to a manufacturer’s distributor, as required under California Health & Safety Code Section 108971.
- Testing of Covered Products: Manufacturers will be required to conduct testing and provide the analytical test results demonstrating compliance with the PFAS restrictions to DTSC. DTSC is charged with determining the acceptable testing methods for covered products and the appropriate third-party laboratory accreditation.
- Enforcement: Starting July 1, 2030, DTSC is authorized to enforce and ensure compliance with these laws, which includes the authority to randomly test covered products for compliance with the PFAS restrictions.
- Notice of Violations (“NOVs”) and Penalties: DTSC is authorized to issue NOVs to manufacturers that violate the covered PFAS restrictions. Following an NOV, on a case-by-case basis, DTSC has authority to determine an appropriate enforcement mechanism and the amount of any administrative penalty, not to exceed $10,000 for the first violation. The bill also allows a penalty to be assessed for each day that a violation continues, leading to potentially tens of thousands of dollars in penalties, depending on DTSC’s evaluation of the severity of the violation, evidence that the violation was willful, and several other factors that DTSC will evaluate in its discretion to determine the penalty amount.
AB 347 adds extensive new requirements to an already challenging regulatory landscape. Fortunately, timelines for achieving compliance with these new laws are years out, providing plenty of time for manufacturers to prepare to meet compliance deadlines.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
