Citing Implementation Costs, California PFAS-Ban Bill Dies In State Senate

Kelley Drye & Warren LLP


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After facing heavy opposition since initially introduced five months ago, California state senators have decided to scrap SB 903, a highly controversial bill that would have prohibited...
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After facing heavy opposition since initially introduced five months ago, California state senators have decided to scrap SB 903, a highly controversial bill that would have prohibited the distribution, sale, or offering for sale of products containing "intentionally added" per- and polyfluoroalkyl substances ("PFAS"). The California Senate Appropriations Committee voted to abandon the bill in light of strong opposition by industry groups and concerns raised by the California Department of Toxic Substances Control ("DTSC" or "the Department") regarding implementation. Specifically, DTSC said that implementing SB 903 would cost, at a minimum, $10 million annually. California currently faces a $45 million budge deficit.

Originally introduced by California state senator Nancy Skinner (D-Berkeley), SB 903 would have adopted prohibitions on the manufacturing, distribution, and sale of products containing intentionally added PFAS akin to bans in Maine and Minnesota. The scaling of SB 903 is a noteworthy difference though – California remains the fifth largest economy in the world since 2017.

During deliberations, DTSC told the California Senate Appropriations Committee staff that the bill would create such a large new universe of regulated entities that the Department would have to establish a new branch within the organization to "develop, implement, and administer this new initiative." DTSC furthered that "the exact magnitude of this bill is unknown; however, the department anticipates it would require at least 44 positions and over $10 million to sufficiently implement this bill as currently written." Moreover, "[t]o the extent that other state departments use or procure products containing intentionally added PFAS that would be affected by this bill, [there are] unknown but potentially significant state costs for state boards, departments, and organizations to comply with the provisions of this bill."

Despite SB 903's failure to pass through the California Legislature, the Golden State's existing efforts to restrict the use of PFAS in consumer goods remain evident. 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.

Nevertheless, California seems to have picked up on something by observing the implementation struggles that "first mover" states like Maine are dealing with. Indeed, two years after Maine passed their initial PFAS-in-products prohibitions, the state significantly overhauled its ban in light of noteworthy implementation difficulties, in turn dramatically shrinking the scope of the reporting requirements and creating a staggered phase-out system for numerous consumer products containing intentionally added PFAS.

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