Preparing for California’s Ban on PFAS in Textiles

Kelley Drye Client Advisory

California Governor Gavin Newsom signed the Safer Clothes and Textiles Act (AB 1817) (the Act”) into law on September 29, 2022.  The Act bans per and poly-fluoroalkyl substances (“PFAS”) in textiles. The textile, clothing, and leather goods industries will see industry-wide changes as manufacturers, distributors, and sellers prepare for a partial ban to take effect on January 1, 2025, followed by a stricter ban in 2027. As with other California state requirements, such as Proposition 65, California’s PFAS ban has implications for the textile industry across the country and around the world.

PFAS are a group of thousands of man-made chemicals that are desirable in textiles due to their stain proofing and water resistant qualities. For instance, Scotchgard®, advertised for application to textiles, shoes, and accessories to protect them from stains and water, was found to have PFAS. The manufacturer of Scotchgard®, 3M, recently announced that it will no longer manufacture any products that contain PFAS. Textiles that have been coated with a product to make them stain proof or water resistant—often advertised on furniture, fabrics, and camping gear—may be coated with a PFAS-containing product.

For its part, the Act prohibits the manufacture, distribution, or sale of textiles in the state of California that contain PFAS above a permitted threshold (as discussed below).  Under the new law, textiles” include any item made in whole or part from a natural, manmade, or synthetic fiber, yarn, or fabric, including leather, cotton, silk, jute, hemp, viscose, nylon, or polyester. The PFAS ban includes textiles used in apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths.

The Act’s Tiered Approach to Banning Textiles Containing PFAS Above a Threshold

Beginning on January 1, 2025, the manufacture, sale, or distribution of any textiles containing more than 100 parts per million (“ppm”) of PFAS will be prohibited in California. This threshold will be lowered to 50 ppm on January 1, 2027.

Keeping in mind this timeframe, manufacturers, sellers, and importers of textiles, including converted textiles and leather, should investigate the chemicals involved in manufacturing products for sale within the California market. This includes products that are manufactured outside of California, but destined for final sale in California.

Satisfying the Act’s thresholds may involve identifying, testing, and researching the potential hazards of replacement-chemicals that serve as the functional equivalent for PFAS for certain leather treatment purposes such as protectant, spot removal, or water repellant.[1]  The Act requires that manufacturers use the least toxic alternative” when replacing PFAS from products implicated pursuant to the Act, and to provide retailers and distributers a signed certificate of compliance with the Act.

PFAS-Containing Treatments Are Not Included in the Ban

The Act exempts from the ban the manufacture, distribution, and sale of treatments containing PFAS for use on converted textiles or leathers, some of which are currently regulated pursuant to California’s Safer Consumer Products Regulations. Treatments containing PFAS are defined as any product containing PFAS placed into commerce in California that may be marketed or sold for the purpose of eliminating dirt or stains from carpets, rugs, clothing, shoes, upholstery, or other converted textiles and leathers; or repelling stains, dirt, oil, or water from carpets, rugs, clothing, shoes, upholstery, or other converted textiles and leathers.” While the California Legislature did not provide reasoning for this exemption, the implication is that the use of these products will likely decline.

Further, the ban does not apply to outdoor apparel for severe wet conditions,” including personal protective equipment, until January 1, 2028. However, commencing January 1, 2025, distributers or sellers of new apparel of this type containing PFAS must provide a legible disclosure that it contains PFAS chemicals.

The Act also specifically exempts clothing made for the exclusive use of the U.S. military, vehicles and each of their component parts, carpets and rugs, textile articles used in or for laboratory analysis and testing, and filter products used in industrial applications.

Certain PFAS-Containing Treatments Regulated Previously

The ban comes on the heels of the California Department of Toxic Substances Control’s (“DTSC”) April 2022 regulation that added certain PFAS-containing treatments to the Priority Product list (the List”). Pursuant to the Safer Consumer Products Regulations, domestic and foreign manufacturers of treatments for converted[2] textiles or leathers that contain any member of the class of PFAS must submit a Priority Product Notification (“PPN”) for those products sold in California. Importantly, the PPN must name all of the manufacturer’s products that contain PFASs and are sold in California,” and be submitted through DTSC’s CalSAFER portal. The date for compliance with that regulation was May 31, 2022. Thereafter, a manufacturer is required to notify CalEPA of its intent to stop manufacturing the treatment or replace the PFAS in the treatment with an alternative. Manufacturers of treatments for converted textiles or leathers whose products do not contain PFAS do not need to take any action pursuant to this 2022 regulation.

Whereas other states, such as Maine, have enacted sweeping bans on the sale of all PFAS-containing products in the State, California has opted for a piecemeal approach to regulating PFAS.  However, with textiles joining cosmetics industries to receive heightened scrutiny, textile manufacturers, distributors, and sellers should begin evaluating these implications to stay ahead of future market declines or potential compliance issues.

We would be glad to answer any questions you have about this new law.

[1] The California Department of Toxic Substances Control has put forth this non-exhaustive summary of alternative chemicals to PFAS in treating converted textiles and leathers, but does not endorse these alternatives as they have not been vetted for safety or performance.
[2] The DTSC uses the term converted” to indicate textiles and leather that manufacturers and craftspeople have turned into consumer products such as carpets, upholstery, furnishings, clothing, shoes, etc.