Will California Soon Join Maine and Minnesota in Banning All PFAS Containing Products?

This year, the California state legislature will consider expansive new legislation, Senate Bill (SB) 903, that would prohibit the sale or distribution of products containing intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), beginning in 2030. If enacted, California will join the states of Maine and Minnesota, which are already implementing similar laws. Below are key takeaways from the proposal. Please see our Advisory for more details.

Broad Scope of Products

Senate Bill 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.

Exemptions

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.

Manufacturers Can Petition for “Currently Unavoidable Use”

Manufacturers may seek to exempt their product(s) or product category by petitioning DTSC to determine that the use of PFAS in a product category is a currently unavoidable use. Senate Bill 903 specifies three conditions that must be met in order for such a determination to be made: no safer alternatives to PFAS are reasonably available, the function provided by PFAS is necessary for the product to work, and the use “is critical for health, safety, or the functioning of society.” Should DTSC determine the use of PFAS in a product category is a currently unavoidable use, SB 903 limits the determination to five years. Manufacturers may seek to renew the determination.

Accelerated Prohibitions and Public Petitions

Senate Bill 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.” Additionally, the public is authorized to petition DTSC to consider earlier effective dates.

Civil Penalties

The bill 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.

Regulatory Rulemaking Process

Should the legislation become law, DTSC will have until January 1, 2027 to adopt implementing regulations.

Conclusion

While California has already passed several product category-specific PFAS laws in recent years, SB 903 is by far the most expansive proposal considered to date and will impact numerous important California commercial sectors. We expect significant lobbying on this bill in Sacramento this spring and summer. For questions or additional information, please reach out to the authors or your Arnold & Porter contact.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This blog post 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.