ADventures in Law

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A series of recent California laws have placed significant restrictions on the sale of certain products in the state that contain intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS). California hopes, by 2032, to expand this prohibition to include essentially <em>any </em>product containing PFAS.

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Senate Bill 903 (SB 903), which was passed by the Senate’s Environmental Quality Committee on April 4 and remains pending, would ban any person from distributing, selling or offering for sale products that contain “intentionally added” PFAS substances, with only limited exception. The law, if enacted, would be an unprecedented expansion of California’s ban on PFAS-containing products. Indeed, the bill would apply to any product designed for personal, residential, commercial or industrial use, as well as the product’s components. SB 903 also contains a broadened definition for “intentionally added” PFAS. While prior laws generally applied only where PFAS imparted some functional or technical benefit to the product, SB 903 would ban such products where PFAS are simply introduced during the manufacturing process, such as from the presence of PFAS in processing and mold release agents. This broadened definition may make compliance challenging, especially for products manufactured overseas, where PFAS continue to be commonly used in the manufacturing process.

As currently drafted, continued use of intentionally added PFAS would be permitted only upon a showing of their use as unavoidable, that is, (1) there are no safer PFAS alternatives, (2) the inclusion of PFAS is necessary in order for the product to function, and (3) the use of PFAS is critical for the health, safety or functioning of society. This is a heavy burden for a person to meet.

SB 903 would take effect on Jan. 1, 2032, if enacted, though implementing regulations could include effective dates for certain products or product categories before this date. In its current draft form, SB 903 includes administrative penalties of up to $1,000 per day for the first violation. Subsequent violations are subject to penalties of up to $2,500 per day.

BakerHostetler will continue to track SB 903’s progress and provide further updates as the bill advances through the California legislature.

California’s Continuing Crusade Against PFAS-Containing Products