California to Create PFAS Regulatory Enforcement Program

Assembly bills 347 and 2515 require California's Department of Toxic Substances Control to enforce product testing for PFAS

On Sept. 29 and 30, Governor Gavin Newsom signed AB 347 and AB 2515, directing California's Department of Toxic Substances Control (DTSC) to adopt regulations and publish acceptable testing methods for per- and polyfluoroalkyl substances (PFAS) in juvenile products, textile articles, and food packaging (AB 347) and in menstrual products (AB 2515). Manufacturers of these products will have to register with DTSC, pay a fee, and provide compliance certification by July 1, 2029, with enforcement beginning in July 2030.

These bills follow in the footsteps of two prior California PFAS bills, AB 727 and AB 246, which were vetoed for lack of regulatory oversight and challenges to implementation. AB 347 and AB 2515 address Governor Newsom's concerns about enforcement, providing DTSC with a clear pathway to monitor and regulate PFAS in consumer products under their existing Priority Product Work Plan.

AB 347

AB 347 aims to "enhance the enforcement of existing restrictions" on using PFAS in juvenile products, textile articles, and food packaging. Although California already has a specific threshold of 100 parts per million (ppm) measured as "total organic fluorine" (TOF) for food packaging (AB 1200) and juvenile products (AB 652) - even if incidentally present - current legislation does not specify a method or methods for measuring TOF to assess compliance. AB 347 directs DTSC to fill that gap without specifying any testing methods in the bill itself.

AB 2515

AB 2515 "prohibits the manufacture, distribution, sale, or offering for sale of any menstrual products" in California containing regulated PFAS. Unlike prior California bills restricting PFAS in products, AB 2515 does not establish an acceptable concentration threshold for PFAS but instead defers to DTSC to set the PFAS limits for menstrual products.

National view

Other states have enacted or proposed similar PFAS bans on menstrual products, children's products, textile articles, and food packaging, although not all are as far-reaching as California's.

• Colorado (CO SB081), Connecticut (CT SB292), Maine (ME LD1537), Minnesota (MN HF2310), New Hampshire (NH HB1649), Rhode Island (RI H7356 and S2152), and Vermont (VT S25) have enacted bans on the sale or distribution for sale of menstruation products with intentionally added PFAS. Minnesota's bill includes the earliest effective date of Jan. 1, 2025, while the other bills take effect in 2026 or 2027. None of these bills include specific compliance thresholds.
• New York has proposed a ban on menstrual products with intentionally added PFAS or the presence of PFAS at or above a threshold that is "the lowest level that can feasibly be achieved." The bill does not specify if the threshold will be based on TOF or a different measure.
• Vermont has enacted a ban now in effect on textiles with PFAS concentration thresholds of 100 ppm measured as TOF, with further limits down to 50 ppm beginning in 2027. The same bill bans the intentional addition and presence of PFAS in any amount in food packaging and children's products.

Analyzing the impact

Both California bills have measures built into them to support DTSC. AB 2515 creates the T.A.M.P.O.N. Act Fund for depositing the penalties collected from violations of the bill's provisions, which are to be used once the fund "generates revenues sufficient to fund the department's reasonable costs of implementing this article." Similarly, AB 347 establishes the PFAS Enforcement Fund to help DTSC implement its provisions.

The extent and scope of the impact these bills will have on manufacturers remains unclear. As these bills come into effect, at least the following challenges remain for manufacturers.

Testing: The bills require DTSC to rely on third-party testing to determine compliance; however, neither one includes a list of accepted testing methods for determining TOF. AB 2515 requires the agency to publish a list of accepted testing methods for regulated PFAS in menstrual products by Jan. 1, 2027, while AB 347 gives it until Jan. 1, 2029, to publish a similar list for the products it covers, along with lab accreditation requirements.

Increased liability: Because it can be difficult to assess compliance in the absence of approved testing methods, manufacturers of products alleged to contain PFAS could potentially face litigation or challenges to their brand image based on the results of a non-standardized test method that may or may not indicate noncompliance with the new bills.

Expense: The bills require all manufacturers of affected products (e.g., menstrual products, juvenile products, textile articles, or food packaging) to pay a registration fee, whether or not their products contain PFAS. DTSC will determine the fee amount and manner of registration following the bill's passing.

Precedent: These bills contain new provisions that could set a precedent for how future restrictions on PFAS in consumer products are enforced. For example, the requirement for any manufacturer to register its products and provide statements of compliance goes beyond other state reporting rules that only require manufacturers to respond if they are using known PFAS chemistries.