The California Legislature Will Consider Sweeping New PFAS Legislation This Year

In recent years, the California legislature has considered several bills seeking to regulate or prohibit intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS) in specific product categories, such as cosmetics, textile articles, and juvenile products. This year, the state legislature will consider a significantly more expansive proposal, Senate Bill (SB) 903. The legislation, introduced by State Senator Nancy Skinner (D-Berkeley), seeks to prohibit the sale or distribution of all products containing intentionally added PFAS regardless of category, beginning in 2030. If enacted, California will join the states of Maine and Minnesota which are already implementing similar laws.

As written currently, Senator Skinner’s bill defines “product” in such a broad manner that the legislation will impact numerous important California commercial sectors. SB 903 defines “product” to include virtually any product intended for “personal, residential, commercial, or industrial use” or for use “in making other products.” As such, PFAS would be prohibited in materials used in many key sectors such as agricultural equipment, automotive components, medical devices, solar and wind energy harvesting, office equipment, and electronic products.

The legislation does provide a few, specified exemptions. Those exemptions are for (1) products for which the use of PFAS is determined, by the Department of Toxic Substances Control (DTSC), to be a currently unavoidable use; (2) products that are governed by federal law as it pertains to the presence of PFAS in the product; and (3) used products.

Senate Bill 903 outlines specific requirements for manufacturers to follow if they wish to seek a currently unavoidable use determination from DTSC. Manufacturers must provide information in a petition to DTSC requesting the department to determine that the use of PFAS in a product category is an unavoidable use. Based on the petition, DTSC must find that no safer alternatives to PFAS are reasonably available, that the function provided by PFAS is necessary for the product to work, and that the use “is critical for health, safety, or the functioning of society.” The bill limits such a determination to five years, at which point the determination will expire unless the manufacturer submits a petition to renew the determination no later than six months prior to expiration.

It is worth noting that SB 903 allows the department to require a prohibition on the sale or distribution of products containing intentionally added PFAS in a particular product category to go into effect earlier than 2030, “if it is feasible to do so.” If the department determines that any of the following conditions are met, an earlier effective date is to be deemed feasible: (1) if a safer alternative exists, (2) if an applicable, publicly-available study includes findings that shows safer alternatives to PFAS are viable in the product or product category, or (3) if another state in the United States already bans the sale or use of PFAS in the product or product category. The public is authorized to petition DTSC to consider earlier effective dates.

Senate Bill 903 also provides that civil penalties may be assessed for failure to comply. The civil penalty is capped at $1,000 for each day during which the violation continues; a second violation is capped at $2,500 for each day during which the violation continues.

Should the legislation pass, and Governor Newsom signs it into law, DTSC will have until January 1, 2027 to develop regulations to administer the requirements of the bill. The governor’s signature is not guaranteed as he has a mixed record on signing PFAS legislation. Since 2021, Governor Newsom has signed bills that ban the sale of PFAS-containing cosmetics, textiles (with exceptions), and juvenile products, but he has also vetoed bills that would have phased out PFAS in cleaning products, artificial turf, and menstrual products.

SB 903 has already garnered significant attention in Sacramento. We will continue to monitor relevant developments and provide updates. For questions or additional information, please reach out to the authors of this Advisory or your Arnold & Porter contact.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.