As California gears up to implement two crucial pieces of environmental legislation—AB 1817 and AB 2771—focusing on the regulation of per-and polyfluoroalkyl substances (PFAS), companies worldwide are preparing to meet the new standards to avoid significant legal and financial repercussions. These laws, effective from January 1, 2024, will mandate changes primarily in textiles and cosmetics, two sectors heavily reliant on PFAS for product functionality.
PFAS, often referred to as “forever chemicals,” have been added to consumer products ranging from apparel and cosmetics to food packaging and carpets due to their resistance to water, stains, and heat. Despite their industrial benefits, PFAS do not degrade easily in the environment and have been linked to various health complications, necessitating regulatory oversight (FDA on PFAS). The new California laws are designed to curtail their use, particularly in textiles and personal care products (AB 1817) and (AB 2771).
For companies, the key to compliance lies in a detailed audit of their product lines and the materials within their supply chain. Identifying PFAS in a product matrix can be complex and costly, especially as these chemicals may be present at low concentrations, necessitating precise and often expensive testing protocols. Collaboration with accredited labs is crucial, as is obtaining written assurances from upstream suppliers to ensure PFAS-free products. With many corporations depending on global supply chains that may lack familiarity with California’s specific regulations, the communication about compliance must be clear and documented.
Strategically speaking, companies can either reformulate their products to meet California’s standards or cease sales in the state. However, given California’s status as the fifth-largest economy globally (Governor’s Office of Business and Economic Development), opting out of this market is often not financially viable. As an interim measure, many organizations are choosing to align their nationwide product lines with California’s stricter regulations, thereby avoiding complications with logistics and market segmentation.
The shift to compliance is not without its challenges, including increased costs, potential reductions in product performance, and meeting consumer expectations for product efficacy. Additionally, periodic audits that consider supply chain changes are vital to maintaining compliance and avoiding unintended legal exposure.
Moreover, companies need to brace for potential litigations under consumer protection statutes such as the Consumer Legal Remedies Act and Unfair Competition Law (Unfair Competition Law). This is especially pertinent as the plaintiffs’ bar becomes increasingly vigilant in identifying companies that fail to meet compliance standards, echoing trends seen in past regulatory contexts like California’s Proposition 65.
The intricacies of complying with the new PFAS laws underscore the importance for companies to work closely with legal advisors and experts to navigate these changes smoothly. Considering the potential legal and reputational risks, due diligence in compliance efforts is not just prudent but essential. For additional insights on the topic, Greenberg Glusker’s specialists Sedina L. Banks and Sherry Jackman provide detailed guidance in their article at Bloomberg Law.