The “Ending Forever Chemicals Act” (SB 903) builds on the Golden State’s existing efforts to restrict the use of PFAS in consumer goods. For example, AB 1817 and AB 2771 passed through the legislature easily and were both signed by Governor Gavin Newsom on September 29, 2022. These bills respectively prohibit the manufacturing, distribution, sale, or offering for sale of textile articles or cosmetic products containing PFAS beginning January 1, 2025.

SB 903 proposes to apply this prohibition to all “products,” which the bill defines as “an item manufactured, assembled, packaged, or otherwise prepared for sale in California, including, but not limited to, its components, sold or distributed for personal, residential, commercial, or industrial use, including for use in making other products.” It further defines “component” as “an identifiable ingredient, part, or piece of a product, regardless of whether the manufacturer of the product is the manufacturer of the component.” The prohibition would be effective January 1, 2030. Interestingly, the bill gives the California Department of Toxic Substances Control (“DTSC”) the authority to, via rulemaking, prohibit intentionally added PFAS in a product or product category before the 2030 effective date.

Like Maine and Minnesota’s ban of PFAS in consumer goods, California also creates exemptions for products where DTSC finds via rulemaking that the presence of PFAS in the consumer good constitutes a “currently unavoidable use” (“CUU”). To qualify, the bill authorizes DTSC to solicit petitions for individual products and product categories that may qualify for a CUU waiver. The Maine Department of Environmental Protection is accepting individual CUU proposals until this Friday, March 1, for products that may fit within the standard. Meanwhile, the comment period for the Minnesota Pollution Control Agency’s proposed definition of CUU also closes on March 1.

California’s bill would statutorily codify the requirements to satisfy a CUU at HSC, Division 104, Part 3, Chapter 18, 109030.2(a). A CUU would be found where:

1. There are no safer alternatives to PFAS that are reasonably available.
2. The function provided by PFAS in the product is necessary for the product to work.
3. The use of PFAS in the product is critical for health, safety, or the functioning of society.

Note that the third criterion here is borrowed from the definition of “CUU” under Maine’s prohibition exemption at 38 M.R.S. § 1614.1.B.

SB 903 further outlines what CUU petitions must contain, and how DTSC must evaluate such petitions. This includes a requirement that all petitions be subject to public comment.

Moreover, the bill provides that CUU petitions expire five years after issuance. The bill authorizes DTSC to revoke petitions prior to expiration if it can determine that the information used to justify the issuance is no longer relevant. And, importantly, the bill requires manufacturers to renew determination petitions no later than six months prior to their expiration. DTSC must also publish an online list on their website of each determination of a CUU, its expiration date, and the products and uses exempt from the prohibition.

If DTSC has reason to believe that a product contains intentionally added PFAS in violation of the bill, SB 903 authorizes DTSC to require the manufacturer to test the product and send DTSC results demonstrating compliance. Violators would be subject to a civil penalty not to exceed $1,000 per day for each violation, with repeat violations raising that penalty to a $2,500 maximum. The bill also authorizes the judiciary to enjoin sale of violating products.

While California is not the first state to issue such a ban, and has indeed borrowed almost all of these provisions from Maine or Minnesota, SB 903 represents the most realized version of such a prohibition introduced to date. It provides robust language and demarcated instructions to DTSC on how to effectuate the ban and its numerous exemptions. It also allows public comment for individual CUU petitions and explains how the CUU exemption must be renewed over time.

The bill will likely gain support in the California legislature. The real question moving forward is whether Gov. Newsom, who has vetoed several PFAS prohibition bills (see here and here) in the past for vagueness and overreach surrounding applicability and enforcement, will be satisfied with the legislation.

The “unavoidable use” exception to the pending ban is the subject of a rulemaking process by the Maine Department of Environmental Protection (“DEP”) and awaits further detail. Depending on the nuances of this exception, the law could very well ban a vast range of products. Compliance for many companies is expected to be difficult, and given already strained supply chains, could result in certain products not being sold in the state altogether. Moreover, the law imposes a heavy administrative burden on the DEP, which will now be tasked with verifying compliance for a massive swath of products, ranging across fabrics, cleaning products, paints, fire-fighting foams, cookware, food packaging, food processing equipment, and cosmetics, among others.

A particularly notable criticism is that all PFAS are not the same. Indeed, there are over 9,000 types of PFAS (identified so far), each with their own unique chemical makeup and profiles. Maine’s bold stroke is therefore scientifically overbroad and will impose unnecessary burdens on many of the product manufacturers and retailers doing business in the state. Moreover, in a state that has ambitions of transitioning to more renewable energy sources, PFAS provide crucial insulation and physical, thermal, and chemical resistance to technologies vital to solar and wind energy.

Science driven and industry sensitive alternatives are certainly prevalent in sister states. In fact, states like California, Colorado, Connecticut, Hawaii, Maryland, Minnesota, New York, Oregon, Rhode Island, Vermont and Washington, have enacted less restrictive PFAS statutes than the total ban Maine proposes. Many of those states too, along with Georgia, Iowa, Massachusetts, Michigan, New Hampshire, New Jersey, North Carolina, Pennsylvania and Wisconsin all have proposed legislation regulating PFAS in some capacity.

That said, current scientific research suggests that exposure to high levels of certain PFAS may lead to adverse health outcomes. This, combined with their presence in various environmental media, consumer goods, and food product packaging, could make them a broad and slow-building threat to human health.

Given the sophistication and complexity behind PFAS regulation, painting with broad prohibitions like Maine’s is certainly bold. No other state in the union, even those with notoriously more rigid regulatory structures for environmental issues, have an outright and total ban on PFAS. A one-size-fits-all solution is simply impractical and overbroad, disrupting economies and industry while reducing consumer’s access to essential goods and services. Of course, when health is at stake, further investigation is warranted. This analysis can and should be conducted in a way that is congruous with the nation’s recovering supply chain and economic apparatus.

EPR is a broad policy concept that covers a range of programs that, as defined by EPA, "place a shared responsibility for end-of-life product management on producers and other entities involved in the product chain." Notable examples include the European Union End-of-Life Vehicles Directive, and various U.S. state requirements that govern products such as appliances, electronics, vehicle switches, batteries, paint, pesticides, pharmaceuticals, and, of most recent note, product packaging. (See my blog post on a recent EPR product packaging laws in Maine, Oregon, and elsewhere.)

A circular economy is an industrial system that is restorative or regenerative by design. It is a change to the linear model from which resources are mined, made into products, and then thrown away. A circular economy reduces materials use, redesigns materials and products to be less resource intensive, and recaptures “waste” as a resource to manufacture new materials and products.

- EPA National Recycling Strategy

The strategy is likely to provide impetus for further adoption of EPR programs nationwide.

More information on EPA's National Recycling Strategy is available here.

Originally finalized this past January, the PBT rules immediately drew widespread criticism, particularly with regard to PIP (3:1) and the broad prohibition on the processing, import, and other distribution in commerce of components and products containing the substance, initially scheduled to come into effect on March 8, 2021. PIP (3:1) is a widely used plasticizer and flame retardant that is present in a wide range of components, particularly electronics including cell phones, laptop computers, wiring harnesses, and other equipment used across a broad spectrum of industries. With only limited exemptions in the current PBT rule, many companies were faced with a major compliance dilemma that could prevent access to and import of critical parts or materials. In response, EPA adopted a "no action assurance" policy that paused enforcement of certain provisions of the PIP (3:1) rule for six months. In September, EPA further extended the enforcement pause until March 8, 2022.

Now, EPA is proposing a further extension until October 31, 2024 of the compliance deadline for the provisions related to PIP (3:1) in articles.

EPA is proposing to further extend the compliance dates related to articles containing phenol, isopropylated phosphate (3:1) (PIP (3:1)) to ensure supply chains for key consumer and commercial goods are not disrupted.

- EPA Press Release, October 21, 2021

The latest proposed rule seeks to further extend the compliance date applicable to the processing and distribution in commerce of certain PIP (3:1)-containing articles, and the PIP (3:1) used to make those articles, along with associated recordkeeping requirements for manufacturers, processors, and distributors of PIP (3:1)-containing articles.

In the proposal, EPA describes specific kinds of information the agency is seeking to support finalizing the proposed compliance date extension, including:

• Specific uses of PIP (3:1) in articles throughout their supply chains;
• "Concrete steps taken" to identify, test, and qualify substitutes for those uses;
• Specific product certifications that would require updating (such as flammability standards);
• An estimate of the time that would be required to remove the substance; and
• Documentation of specific needs for replacement parts, including the service life of the equipment and the identification of any applicable regulatory requirements for the assurance of replacement parts.

The provisions of the January 2021 rules remain in effect while EPA works on the new rulemaking effort, with the exception of PIP (3:1) as noted above.

Further information on the proposed PIP (3:1) rulemaking is available at EPA's website.

Following are some of those “insights," observations and other musings from the front lines of Prop 65:

I started my career as a pre-school teacher - which proved to be good preparation for dealing with [Prop 65] stakeholders!

- Carol Monahan Cummings, Chief Counsel of OEHHA and Conference Chair

• Conference Chair, Carol Monahan Cummings, Chief Counsel of the Office of Environmental Health Hazard Assessment (OEHHA) for the past 18 years, provided the "view from the lead agency" and highlighted OEHHA's work over the last two decades to make warnings more meaningful to consumers and less vague, as well as OEHHA's attempts to reduce the "over-warning" phenomenon. I would argue that the effort on the first issue has proven relatively successful (e.g., adding chemical names to the warnings and establishing webpages to provide more detail on potential exposures), but that OEHHA has been spectacularly unsuccessful in addressing "over-warning."
• Over-warning was a common theme running through many of the panel discussions. For years, OEHHA and private plaintiff enforcers have bemoaned the proliferation of Prop 65 warnings on products for which a warning technically may not be required (due to no or minimal exposure, for instance) but is provided "prophylactically" to avoid the risk of a lawsuit. As summarized by Eric Somers with Lexington Law Group, which represents the Center for Environmental Health, a prominent Prop 65 enforcement organization: "Over-warning diminishes the impact of warnings over time ... consumers become less risk averse about those warnings and less inclined to take steps to avoid the exposure ... and companies will be less inclined to [do something to] reduce exposures to the chemical."
• However, "prophylactic" warnings are entirely reasonable from a business perspective. As one defense counsel panelist summed it up: "it is simple cost-benefit analysis ... if the chemical is there, unless your science [showing no exposure] is undisputed" -- something that is very rare -- "then the business is looking to mitigate risks."

If the chemical is there, then I'd be hard-pressed to say that there is not a risk [of being sued].

• In discussing the future of the current "short-form warning," panelists were in agreement that OEHHA's contention that proposed amendments are needed in part because the short-form warning contributes to over-warning was a "red herring." The over-warning phenomenon long-preceded adoption of the short-form option in 2016. Eric Somers, with the plaintiff-side Lexington Law Group, summarized: "Over-warning is caused by aggressive enforcement and the business desire to mitigate risk."
• Over-warning is not the result of specific regulatory safe-harbor warning text or mechanisms of delivery; rather, it is directly related to the practical reality that to avoid being forced into a settlement the only other option for a business is to go to trial, with all its related uncertainties and costs. As I wrote at the time the 2016 amendments were adopted: "By focusing exclusively on the question of how to provide 'clear and reasonable' warnings, ... the amendments fail to address perhaps the most important question facing businesses confronted with Proposition 65 compliance: the issue of when warnings are required is not addressed at all. Hence, businesses will remain challenged by the paramount issue of whether a warning is required, particularly for a product that may contain a listed chemical but for which the company believes, based on its own due diligence and proper science, that exposure is below a safety threshold.... While a business rightfully should develop data on potential exposures to a listed chemical in a product, and assess the safety of that exposure, plaintiffs remain free to challenge such exposure/safety assessments and drag businesses into the expensive and time-consuming Proposition 65 enforcement process."
• OEHHA earlier this year proposed to limit the use of "short-form" warnings to situations where space is constrained (products with 5 square inches of label space or less); to eliminate their use for internet and catalog warnings; and to require identification of a chemical for which the warning is being provided.
• Objections from the business community are focused more on the process than the content/details of the short-form warning: after going through a multi-year regulatory process that resulted in the current "short form" option in 2016, and having now implemented those label changes, it is frustrating to have to "go through this again" only a few years later. "Changing a label on a product is expensive."
• Factors that plaintiffs consider in assessing whether to bring a case:
  • The potential for harm if nothing is done, particularly with respect to chemicals with adverse impacts at low exposure levels (such as lead)
  • Opportunities for reformulation to reduce or eliminate exposures to a listed chemical in a product
  • The potential for a broad industry-wide impact by provoking change in a manufacturing process or inputs
  • Whether a warning would be effective if reformulation is not viable
  • Environmental justice (EJ) impacts - seek to address marketing of certain products to EJ communities (based on input from those living in and actively working with EJ communities)
• Great discussion of the pending First Amendment case involving warnings related to acrylamide in foods (CalChamber vs Bonda, 9th Circuit): does compelling a "safe harbor" warning violate the First Amendment rights of a business? By way of legal background, such "compelled speech must be purely factual and non-controversial." How does this standard apply for a chemical, such as acrylamide (or, in a prior case, glyphosate) where there remains robust scientific debate about the risk of cancer or reproductive harm from exposure to a given chemical?
• Ideas for addressing the explosion of food cases that do not address realistic risks: reform the certificate of merit process to make the plaintiff's initial showing more robust for chemicals in food; adopt more "safe harbor" levels for acrylamide and other chemicals that form in specific foods to provide more certainty for industry; require a "meet and confer" process prior to litigation for the parties to determine what the appropriate level of the substance should be in food.
• As a lawyer that has represented many new and often smaller companies in navigating the waters of Prop 65, it was great to see a panel session dedicated to the challenges "small businesses" face in complying with Prop 65. Small companies typically lack the resources that larger businesses have to assess compliance with Prop 65 (testing, risk assessment), implement appropriate warning and labeling, or to defend a case when a plaintiff comes calling (or even to "call their bluff"). While there is a "small business" exemption (for companies with less than 10 employees), in practice, the exemption often is of little utility due to indemnity provisions commonly found in contracts between small business producers and downstream distributors and retailers. Panelists cited strong arm tactics by some plaintiffs to "buffalo" small businesses into a settlement. Others cited the impact of broader industry-wide settlements (put together by larger players in an industry or trade associations) that are onerous for small businesses to comply with.
• The good news is that (once again) reform legislation is being developed in the California Assembly ... however, amendments to a voter-adopted initiative require a two-thirds super-majority of both houses of the state legislature. Historically, Prop 65 reform legislation has struggled to pass due to the multiple stakeholders involved with diverging interests -- and, if passed, been too watered-down to provide meaningful relief to businesses.
• The proposed cannabis "safe harbor" warnings will provide new and unique warnings for cannabis smoke and THC products (and different modes of consumption; ingestion, inhalation, topical). Question whether these products are truly sufficiently unique to warrant distinct warning language from other consumer products. The more specified warnings are consistent with OEHHA's goal of making warnings increasingly tailored to provide more detailed information to consumers.
• The conference concluded with a spirited discussion on the topic of the "Divide Between Businesses and Environmentalists Over What Prop. 65 Has Accomplished." From my own perspective, every day I see Prop 65 cases that are charitably described as frivolous, and the vast majority of cases seem to target chemicals that are present at trivial levels and simply do not pose any sort of meaningful risk. Hence, the "over-warning" phenomenon. But it is undeniably true that Prop 65 has been highly successful in focusing the attention of companies and the public on the chemicals that are in products manufactured, used, consumed and purchased every day. In this respect, Prop 65 remains perhaps the single most consequential state-level environmental/public health regulatory program in the US, with global reach.

The biggest accomplishment of Prop 65 is the extent of the law's general deterrence function ... reformulation that occurs behind the scenes, using the Prop 65 list as a check, outside of enforcement, and is completely invisible to the public."

- Claudia Polsky, Clinical Professor of Law and Director, Environmental Law Clinic, UC Berkeley

• Panel debate centered on the role of the private enforcement mechanism. Supporters cite the actions of private plaintiffs as the engine that drives companies to pay attention to Prop 65 and the list of chemicals. Without this mechanism, it would be similar to TSCA at the federal level, dealing only with a small subset of listed chemicals and providing minimal incentive to companies outside of that small group of chemicals. Critics maintain that the private enforcement mechanism is an incredibly inefficient means of achieving the same regulatory results, with little relationship between the penalty paid and the extent of the public benefit achieved. The system has resulted in widespread over-warning, due to the threat of relatively unrestrained private enforcement, and misallocation of public health resources towards minimal or non-existent risks.
• Would a program like "Safer Products" (under the California Department of Toxic Substances Control) be more appropriate? On one hand, government regulatory programs "move like molasses" and are not cost-effective ... though private enforcement focuses costs on one segment of society, businesses that may or may not be primarily responsible for an exposure risk. A government-directed regulatory program, however, would target meaningful risks and weed out the large majority of current cases that are trivial and not truly in the public interest.
• More active public enforcement, with the attorney general and/or district attorneys taking more Prop 65 cases, would be one possible solution ... though resources may not be available to do so.
• Ultimately, the future of Prop 65 relies on the ability to impose proper limits on private enforcement while preserving the core function of plaintiffs as putting teeth into Prop 65.

Under the new law, "producer" companies will be required to file annual reports on their product packaging with the state, the information from which will be used as the basis for assessing annual fees. The program will be operated by a "packaging stewardship organization" that will be formed by the Maine Department of Environmental Protection (DEP), with reporting and fee obligations coming into effect one year after the organization is established. Fees will be based on the net weight of each type of packaging the company reports, and a fee schedule developed by DEP based on collection and processing costs per ton. The collected fees will help fund local government recycling and waste management costs.

"Producers" subject to the law include companies that own a brand sold or distributed within Maine, or, if the brand-owner does not have a presence in the state, the company that imports the product into Maine.

The law covers packaging material "used for the containment, protection, delivery, presentation or distribution of a product, including a product sold over the Internet, at the time that the product leaves a point of sale with or is received by the consumer of the product." There are exceptions for packaging material intended to be used for long-term storage or protection, beverage containers, and certain paint containers, as well as for producers of small amounts of packaging waste.

The clear goal of the program, like other EPR initiatives, is to incentivize companies to reduce the quantity of packaging materials, establish "take back" programs, and move to more "sustainable" product design and packaging options.

Maine is at the forefront of the "EPR for packaging" movement, with at least half a dozen other states considering similar legislation, most notably in Oregon (where the state legislature has passed a bill that awaits the governor's signature), California, Hawaii, Maryland, Massachusetts and New York.

A copy of the Maine law is available here.

The statute may be flawed and subject to legitimate criticism, but practical approaches and skilled practitioners can produce meaningful results.

- Bob Falk, Conference Chair

• Probably the greatest achievement of Prop 65 is focusing the attention of companies and the public on the chemicals that are in the products manufactured, used, consumed and purchased every day. In this respect, Prop 65 remains perhaps the single most consequential state-level environmental/public health regulatory program in the US, with global reach.

• The flip side of that positive Prop 65 story is that those accomplishments have come at a significant cost, economically for businesses but also, and perhaps most importantly, in undermining accurate risk communication and management. Many of the Prop 65 warnings provided today address "risks" that are inconsequential or even non-existent. The sheer volume of warnings -- which are everywhere in California (and, increasingly, on-line), from Target to the produce aisle to restaurants to parking garages and on and on -- renders them more often to the category of "background noise" than a meaningful communication to consumers. In many cases, the warnings may as well be "background noise" as they do not actually correlate to a risk of any consequence. Miniscule amounts of a listed chemical in a product can result in a plaintiff sending a notice of violation and a demand for penalties. To avoid litigation costs, companies often simply settle and agree to post a warning ... or they will do so prophylactically to avoid receiving an NOV in the first place.

If you are going to settle, settling early is almost always better than settling later.

- Bob Falk, Conference Chair

• The "over-warning" problem is recognized by plaintiffs as well ... though they come at it from a little different perspective, criticizing the proliferation of unfounded warnings, particularly of the prophylactic variety.

• Wow. Acrylamide cases are on pace this year to surpass lead cases. In 2015, there were 3 acrylamide cases. This year is trending to over 300.

• Interesting debate over the recent OEHHA proposal to establish specific concentrations of acrylamide in various foods as the "lowest level feasible." Concentrations of acrylamide at or below these levels would not require a warning. Food company and defense counsel favor the proposal as providing more certainty and a bright line target as to the acceptable level of acrylamide (rather than making individual determinations that are open to challenge by plaintiffs). On the other hand, plaintiff groups object to setting acceptable limits based on "feasibility" rather than exposure and risk. Both groups agree that the proliferation of acrylamide 60-day notices (and the consequent practice of over-warning for acrylamide) are significant problems.

• No pandemic slowdown at all in Prop 65 enforcement ... in fact, enforcement is at all-time high. Over 2400 notices of violation have been filed in 2020 for all chemicals, as many as were filed in all of 2019 and well on pace to be the highest annual number ever (~2700 in 2017, and that was only with an anomalous 700 some odd cases filed by a first-time plaintiff in a couple week span).

Litigating-out Prop 65 cases is a crapshoot, with outcomes usually dependent on the predilections of the judges assigned to the case.

- Bob Falk, Conference Chair

• The panel on Prop 65 and the First Amendment was really interesting ... use of the First Amendment as a defense is worth watching closely as an evolving area of Prop 65 law. The glyphosate case is leading the way in further defining the contours.

• Prior consent judgments involving similar products and chemicals can be very helpful in assessing potential risks and providing guideposts for what plaintiffs may be seeking to achieve (regarding penalty amounts or reformulation levels, for example). But adherence to the reformulation standards adopted in consent judgments agreed to between other parties does not guarantee your own compliance, or that another plaintiff will accept the same standards.

And that concludes our broadcast from this year's Conference! As always, for the latest on Prop 65 stay tuned to Kelley Green Law Blog.

Under the new disclosure program, manufacturers (with over 100 employees) of covered cleaning products are required to disclose by July 1, 2019, certain information regarding intentionally added ingredients (other than fragrance ingredients), and nonfunctional ingredients present above trace quantities. Compliance requires completion and submission to NYDEC of a Certification Form, as well as making the required disclosures on the company's website. Additional disclosure requirements are phased in over the next several years, including for manufacturers with less than 100 employees, and with respect to different types of ingredients and information pertaining to human health and environmental risks.

Cleaning products covered by the Program are defined as "soaps and detergents containing a surfactant as a wetting or dirt emulsifying agent and used primarily for domestic or commercial cleaning purposes, including but not limited to the cleansing of fabrics, dishes, food utensils and household and commercial premises.”

No reason was provided for the additional enforcement delay. However, lawsuits challenging the program remain pending.

Further information on the enforcement delay and disclosure program in general can be found at www.dec.ny.gov/chemical/109021.html.