No treats, too much stuff, for PFAS this Halloween

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In a major move from California that may just be a harbinger of radical change by banning or severely restricting the inclusion of hundreds of chemicals found in everyday consumer goods , California has just imposed on the consumer products industry (culminating, at least most likely by 2021, just before the end of October), a wide range of bans that will likely fundamentally disrupt California’s products economy. of consumption.

Ostensibly motivated by concern over the presence of PFAS and other chemicals loosely included in this family of compounds colloquially referred to as “forever chemicals”, and even in the absence of any developed or well-understood science assessing the potential of risk to human health, Governor Newson signed four bills in a single day in October that established new laws relating to food packaging, kitchen utensils and children’s mattresses, sets, strollers and more, in the on the heels of the enactment of additional legislation and regulations passed earlier this year and the latest which has progressively been expanding both the scope and scale of these impending bans and restrictions on the sale of consumer products and commercial products containing PFAS in California.

There is no doubt that the science surrounding PFAS, for example, is in its infancy – as even the Agency for the Registry of Toxics and Disease (ATSDR) observes:

“Scientists are still learning more about the health effects of exposures to mixtures of PFAS… more research will help scientists fully understand how PFAS affects human health. “

In contrast, at the federal level, USEPA has focused its efforts primarily on addressing the presence of PFAS and other so-called “legacy chemicals” in groundwater drinking water supplies, a core mandate of which the USEPA is. charged by Congress, noting the impactful, but potentially premature and disruptive nature of the recent California action, as it does not target groundwater remediation, but rather a wide range of manufacturing, commercial and retail companies that do not probably don’t know – and, moreover, probably can’t determine, if their products are even subject to the new laws.

In a statement by USEPA Administrator Michael Reagan that accompanied the much-heralded October 18 release of the USEPA’s “PFAS Roadmap,” Administrator Reagan explained that the USEPA is “focused on laser ”on the development of a“ comprehensive national strategy on PFAS ”, but not a reckless one. In fact, the cornerstone of the PFAS roadmap is a multi-year strategy deploying a measured approach to refine the necessary scientific research while integrating appropriate policies involving the stakeholders affected by the PFAS roadmap. Some insiders believe that the complexity of this task will take several years, at least, to develop.

This is not the case in California.

In contrast, the majority of California’s recently enacted or promulgated PFAS laws and regulations affecting trade are already in effect or will become in effect by January 1, 2023, or a year or two from now.

To help visualize the magnitude of this impact, here are some examples of product categories for which PFAS content has already been, or soon will be, fully or widely banned in California:

  • Food packaging (including, for example, paper, cardboard and other plant-based packaging, packaging components and other catering accessories, such as containers, boxes, liners, wrappers, bowls, plates and utensils, intended to contain or handle food, drink and other food) (AB1200)
  • Cookware (including, for example, pots, pans, frying pans, grills, baking sheets, baking tins, trays, bowls and utensils) (AB1200)
  • “Juvenile products” (i.e. products intended primarily for children 12 years of age and under) (AB652), comprising:
    • Mattresses, cradles, bassinet and pillows
    • Infant and child seats and vehicle restraint systems for children
    • Oscillations
    • High chairs
    • Strollers
  • Beauty products (prohibiting 13 PFAS class chemicals from being manufactured, sold or offered for sale in California), effective January 1, 2025 (AB2762)
  • Carpets and rugs (designating rugs and carpets containing PFAS as priority products under the California Safer Consumer Products Act (“SCP”), triggering a December 28, 2021 deadline for manufacturers, importers, distributors and retailers to submit an alternative analysis report, in response to which the use of the products may be restricted or prohibited) (22 Cal. Code Regs. §69506.1, §69506.6)
  • Some PPE (mandatory notification of the presence of PFAS contained in certain personal protective equipment provided to employers in high fire risk establishments, such as airports or refineries, from January 1, 2022) (SB1044)
  • Many other consumer products containing PFAS as to which, according to Proposition 65, the two most common PFAS compounds, PFOA and PFOS, should be removed from the product or a warning should be given indicating:

“This product can expose you to chemicals, including perfluoroalkyl and polyfluoroalkyl substances, which are known to the State of California to cause cancer and birth defects or other reproductive harm. 27 cal. Reg. § 25603 (a) (2) (D).

Recent laws and regulations banning and / or restricting PFAS in retail and commercial products in California pose a host of problematic compliance issues affecting businesses spanning the entire spectrum of the product supply chain – as As an example, consider the following three dilemmas:

  1. The above laws apply to “regulated PFAS” but, unlike other consumer product regulations governing the use or content of chemicals, PFAS is not a separate chemical such as, for example, BPA, which is a separate compound with a unique chemical formulation and a specific chemical. Abstract service identification number. Rather, PFAS is an acronym for a diverse group of around 5,000 or more chemicals, according to estimates by the Organization for Economic Co-operation and Development (“OECD”), which are similar in classification in the sense that they share a fluorine-based chemical structure, but which otherwise may demonstrate very different physical, chemical, biological and toxicological properties. The laws and regulations described above do not recognize or consider this overarching differentiating feature at all, which means that these product bans may indiscriminately prohibit useful low-risk (or safe) product components in the process. lack of acceptable substitutes or sufficient time to develop acceptable substitutes.
  2. Likewise, while PFAS are commonly used in the manufacture of a wide variety of consumer products, any chemical subgroup of PFAS or particular chemical may be present only in very low concentrations, thus presenting enormous difficulties when there is no feasible method or protocol to determine whether the banned compound, or one of its degradation products, may be present in the consumer good. Just look at the thorny, unnecessary and often infeasible, decades-long compliance challenges faced by companies struggling to comply with Proposition 65, which only regulates in the order of 1,000 chemicals, or about 20% of the estimated number of chemicals to be included in the PFAS group.
  3. In addition to the above, as noted, the two most prevalent PFAS compounds, PFOS and PFOA, have already been designated as carcinogens and reproductive toxicants under Proposition 65, raising the stakes for a company manufacturing, importing, or supplying a product containing PFAS for sale in California. Not only would this worsen the specter of liability under Proposition 65, but it, in turn, would potentially involve other state consumer protection laws that are allowed to be based on underlying unfair trading practices. or a violation of law, such as California Unfair. Competition Law (“UCL”), Cal. Bus. & Code Prof. §§ 17200 and. that is.
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