AMENDED IN SENATE APRIL 11, 2024
AMENDED IN SENATE MARCH 18, 2024
AMENDED IN SENATE FEBRUARY 21, 2024
SENATE BILL No. 903
Introduced by Senator Skinner
January 4, 2024
An act to add Chapter 18 (commencing with Section 109030) to Part 3 of Division 104 of the Health and Safety Code, relating to product safety.
legislative counsel’s digest
SB 903, as amended, Skinner. Environmental health: product safety:
perfluoroalkyl and polyfluoroalkyl substances.
Existing law, commencing January 1, 2025, prohibits the manufacture, distribution, sale, or of fering for sale in the state of an y ne w, not previously used, te xtile articles that contain re gulated perfluoroalkyl and polyfluoroalk yl substances (PF AS). Existing la w, commencing January 1, 2025, prohibits the manuf acture, sale, delivery, holding, or offering for sale in commerce of an y cosmetic product that contains intentionally added PFAS.
Existing law prohibits the distribution, sale, or offering for sale in the state of certain food packaging that contains regulated PFAS. Existing law prohibits the sale or distrib ution in commerce in the state of an y new, not previously owned, juvenile product, as defined, that contains regulated perfluoroalkyl and polyfluoroalkyl chemicals.
This bill would, beginning January 1, 2030, 2032, prohibit a person from distributing, selling, or of fering for sale a product that contains intentionally added PFAS, as defined, unless the Department of Toxic
96 Substances Control has made a determination that the use of PF AS in the product is a currently unavoidable use, the prohibition is preempted by federal law, or the product is previously used. The bill would specify the criteria and procedures for determining whether the use of PF AS in a product is a currently una voidable use, for rene wing that determination, and for re voking that determination. The bill w ould require the department to maintain on its internet website a list of each determination of currently unavoidable use, when each determination expires, and the products and uses that are exempt from the prohibition.
The bill would impose a civil an administrative penalty for a violation of the prohibition, as specified. The bill w ould establish the PF AS Penalty Account and require all civil administrative penalties received to be deposited into that account and, upon appropriation by the Legislature, to be used for the administration and enforcement of these provisions, as specified.
This bill would require the department, on or before January 1, 2027, to adopt re gulations to carry out the pro visions of this bill. The bill would require the regulations to establish and provide for the assessment of an application fee. fee and to establish an administr ative appeal process to r eview penalties assessed and certain actions and determinations of the department under the bill. The bill would create the PFAS Oversight Fund and require all application fees to be deposited into the fund. The bill w ould require mone ys in the account, upon appropriation by the Legislature, to be used to cover the department’s reasonable costs of administering this act.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Le gislature finds and declares all of the line 2 following:
line 3 (a) Perfluoroalkyl and polyfluoroalk yl substances (PFAS) are line 4 a class of persistent and highly toxic chemicals with widespread line 5 contamination across the United States, including California. The line 6 United States Geological Survey estimates that 45 percent of the line 7 United States’ tap w ater is contaminated with PF AS. It is also line 8 estimated that 98 percent of people living in the United States have line 9 PFAS in their blood.
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line 1 (b) PFAS have been and continue to be used in a broad range line 2 of industrial processes and in manufacturing products because of line 3 their w ater and stain resistant, nonstick, surf actant, and other line 4 properties, including for making packaging, plastic food w are, line 5 cleaning products, ski waxes, menstrual products, metal products, line 6 propellants, coatings and paints, and much more, despite the line 7 growing body of e vidence that these chemicals may leach into line 8 food, water supplies, and even the human body through exposures. line 9 (c) Exposure to PF AS poses a significant threat to the line 10 environment and public health. Adverse health effects associated line 11 with PFAS include, but are not limited to, kidney and liver damage, line 12 decreased immune system function, including interference with line 13 vaccine response and increased risk of asthma, developmental and line 14 reproductive harm, increased cholesterol levels, increased thyroid line 15 disorders and other hormone disruption, and increased incidences line 16 of testicular and kidney cancer.
line 17 (d) PFAS in products is a major source of PFAS contamination line 18 and phasing out nonessential uses of PFAS must be an immediate line 19 legislative objective.
line 20 (e) The intent of this act is to phase out the sale of products with line 21 avoidable PFAS use to address the imminent threat of further line 22 contamination of the environment in the state.
line 23 SEC. 2. Chapter 18 (commencing with Section 109030) is line 24 added to Part 3 of Division 104 of the Health and Safety Code, to line 25 read:
line 26
line 27 Chapter 18. Perfluoroalkyl and Polyfluoroalkyl line 28 Substances
line 29
line 30 109030. For purposes of this chapter, the following definitions line 31 apply unless the context otherwise indicates:
line 32 (a) “Component” means an identifiable ingredient, part, or piece line 33 of a product, regardless of whether the manufacturer of the product line 34 is the manufacturer of the component.
line 35 (b) “Currently unavoidable use” means a use of PFAS that the line 36 department has determined is permissible for a limited time line 37 pursuant to subdivision (a) of Section 109030.2. line 38 (c) “Department” means the Department of Toxic Substances line 39 Control.
line 40 (d) “Intentionally added PFAS” means either of the following:
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line 1 (1) PFAS added to a product that have a functional or technical line 2 effect in the product, including the PF AS components of line 3 intentionally added chemical mixtures and PF AS that are line 4 intentional products of an added chemical or process. line 5 (2) PFAS used or produced during a product’s manufacture or line 6 processing that is introduced into or onto the product, whether or line 7 not it confers a functional or technical effect in the product. This line 8 includes an y source of PF AS that is reasonably kno wn to be line 9 present, including the use of processing agents, mold release agents, line 10 or fluorination.
line 11 (e) (1) Subject to paragraphs (2) and (3), “manufacturer” means line 12 either of the following:
line 13 (A) A person that manuf actures the product and whose name line 14 appears on the product label.
line 15 (B) A person for whom the product is manufactured or by whom line 16 it is distributed, and who o wns or is the licensee of the brand or line 17 trademark under which the product is used in a commercial line 18 enterprise, sold, offered for sale, or distributed in the state. line 19 (2) In the case of a product imported into the United States, line 20 “manufacturer” includes the importer or first domestic distributor line 21 of the product if no person that meets the requirements of line 22 subparagraph (A) or (B) of paragraph (1) has a presence in the line 23 United States.
line 24 (3) “Manufacturer” does not include trade associations or similar line 25 entities.
line 26 (4) For purposes of this chapter, a product may have more than line 27 one manufacturer.
line 28 (f) “Necessary for the product to work” means required for the line 29 product to perform its primary function, as determined by the line 30 department.
line 31 (g) “Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” line 32 means a class of fluorinated organic chemicals containing at least line 33 one fully fluorinated carbon atom.
line 34 (h) “Person” means an individual, firm, corporation, association, line 35 or other entity doing business in California.
line 36 (i) “Product” means an item manufactured, assembled, packaged, line 37 or otherwise prepared sold, distrib uted, or of fered for sale in line 38 California, including, but not limited to, its components, sold or line 39 distributed sold, distrib uted, or of fered for sale for personal, 96 — 4 — SB 903
line 1 residential, commercial, or industrial use, including for use in line 2 making other products.
line 3 (j) “Product category” means a group of similar products that line 4 are used for a similar purpose and that could functionally replace line 5 each other for that purpose, as determined by the department, and line 6 does not mean v ariations within a product that do not af fect the line 7 product’s primary function. F or example, pants, insulation, and line 8 cookware are each a product category whereas stain-resistant pants, line 9 spray insulation, and nonstick cookware are specific variations of line 10 products within those product categories.
line 11 (k) “Reliable information” means a study or e valuation that line 12 meets both the following:
line 13 (1) The study or e valuation design w as appropriate to the line 14 hypothesis being tested, and sufficient to support the proposition line 15 for which the study or evaluation is presented to the department. line 16 (2) The study or e valuation w as published in one of the line 17 following:
line 18 (A) A scientifically peer-reviewed report or other literature. line 19 (B) A report of the United States National Academies. line 20 (C) A report by an international, federal, state, or local agency line 21 that implements laws governing chemicals.
line 22 (l) “Safer alternative” means an alternative that, in comparison line 23 with another product or product manufacturing process, has reduced line 24 adverse impacts or potential e xposures associated with PF AS. line 25 Alternatives include materials, processes, designs, products, or line 26 chemicals that achie ve the desired result. F or e xample, a safer line 27 alternative to stain-resistant sprays for a voiding stains could be line 28 the use of detergents or the use of fibers that are inherently stain line 29 resistant.
line 30 109030.1. (a) (1) Except as pro vided in subdi vision (b), line 31 beginning January 1, 2030, 2032, a person shall not distribute, sell, line 32 or offer for sale in this state a product that contains intentionally line 33 added PFAS.
line 34 (2) The department may establish by re gulation an ef fective line 35 date for the prohibition of PFAS in a product or product category line 36 that is before January 1, 2030, 2032, if it is feasible to do so. The line 37 department shall consider public petitions that request an earlier line 38 effective date for a product category. Feasibility shall be deemed line 39 to exist if any of the following conditions is met:
line 40 (A) The department finds any of the following:
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line 1 (i) There are safer alternati ves to PF AS that are reasonably line 2 available.
line 3 (ii) The function pro vided by PF AS in the product is not line 4 necessary for the product to work.
line 5 (iii) The use of PFAS in the product is not critical for the health, line 6 the safety, or the functioning of society.
line 7 (B) If the findings of all or part of an applicable publicly line 8 available study or evaluation of alternatives shows the viability of line 9 safer alternatives to PFAS in the product or product category. The line 10 department shall only rely on a study or evaluation that is reliable line 11 information.
line 12 (C) If the product or product category is prohibited from being line 13 sold, used, or distributed, as of the date of the feasibility analysis, line 14 in another state or states within the United States, or in another line 15 country, because it contains PFAS.
line 16 (b) A prohibition described in subdi vision (a) shall not apply line 17 to any of the following:
line 18 (1) A product or product cate gory for which there is an line 19 applicable determination of currently una voidable use identified line 20 on the department’s internet website pursuant to subdi vision (g) line 21 of Section 109030.2.
line 22 (2) A product or product category for which federal law governs line 23 the presence of PF AS in the product in a manner that preempts line 24 state authority.
line 25 (3) A previously used product.
line 26 109030.2. (a) Upon a petition from the manuf acturer of a line 27 product or an association or group of manufacturers of a product line 28 or product cate gory, the department shall re view and determine line 29 whether the use of PF AS in the product cate gory to which the line 30 product belongs, belongs is a currently unavoidable use. In making line 31 that determination, the department shall use the broadest reasonable line 32 product category when selecting the product cate gory to which line 33 the product belongs, and shall rely on analysis and findings from line 34 a prior determination for a product cate gory, if a prior line 35 determination exists. The department may identify exclusions from line 36 a product category. Exclusions shall be construed as narro wly as line 37 possible. The department shall find that the use of PF AS in the line 38 product category or for an e xclusion is a currently una voidable line 39 use only if it finds all the following:
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line 1 (1) There are no safer alternatives to PFAS that are reasonably line 2 available.
line 3 (2) The function provided by PFAS in the product is necessary line 4 for the product to work.
line 5 (3) The use of PFAS in the product is critical for health, safety, line 6 or the functioning of society.
line 7 (b) The manufacturer, association, or group, in its petition, shall line 8 provide all of the following:
line 9 (1) Evidence that demonstrates the criteria in paragraphs (1) to line 10 (3), inclusive, of subdivision (a) are met.
line 11 (2) Any additional information requested by the department to line 12 assist in making the determination.
line 13 (3) Any other information that the manuf acturer belie ves is line 14 relevant, with an explanation of the relevance. line 15 (4) The applicable application fee established pursuant to Section line 16 109030.4.
line 17 (c) When determining whether the use of PF AS in a product line 18 category is a currently una voidable use, the department shall do line 19 all of the following:
line 20 (1) Consider the information provided pursuant to subdivision line 21 (b), including relevance and significance for the product category. line 22 (2) Consider available reliable information.
line 23 (3) Consider bans on the sale or use of PFAS in the product or line 24 product cate gory in another state, the United States, or other line 25 countries. If the product or product cate gory is prohibited from line 26 being sold, used, or distributed in a relevant jurisdiction, as of the line 27 date of its una voidable-use analysis, because it contains PF AS, line 28 then that prohibition demonstrates that the use of PF AS is not a line 29 currently unavoidable use.
line 30 (4) Provide an opportunity for public comment. line 31 (d) When determining whether the use of PF AS in a product line 32 category is a currently unavoidable use, the department shall make line 33 a determination without e valuating all the criteria pursuant to line 34 subdivision (b) if the determination can be made based on fe wer line 35 criteria.
line 36 (e) (1) Upon finding that the use of PFAS in a product category line 37 is a currently una voidable use, the department shall issue a line 38 determination of currently unavoidable use.
line 39 (2) A determination of currently una voidable use shall e xpire line 40 five years after its issuance.
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line 1 (3) The department may re view a determination of currently line 2 unavoidable use before its e xpiration and may re voke the line 3 determination if there is a significant change in the information line 4 supporting the determination.
line 5 (4) The department shall consider public petitions requesting a line 6 review of a determination of currently una voidable use based on line 7 a significant change of information.
line 8 (f) A manufacturer, association, or group may submit a petition line 9 to renew a determination of currently una voidable use no later line 10 than six months before its e xpiration. The petition for rene wal line 11 shall comply with subdi vision (b) and also pro vide evidence of line 12 significant efforts to develop a safer alternati ve to the continued line 13 use of PFAS in the product or product category, including, but not line 14 limited to, published peer -reviewed papers and funding of line 15 third-party research with no financial conflict of interest. In line 16 reviewing a petition to rene w, the department shall comply with line 17 subdivisions (a), (c), (d), and (g).
line 18 (g) The department shall maintain on its internet website a list line 19 of each determination of currently una voidable use, when each line 20 determination expires, and the products and uses that are e xempt line 21 from the prohibition specified in subdi vision (a) of Section line 22 109030.1.
line 23 (h) A manuf acturer, association, or group subject to the line 24 prohibition in paragraph (1) of subdivision (a) of Section 109030.1 line 25 shall not submit a petition for unavoidable use determination before line 26 January 1, 2030, or on or after January 1, 2032. July 1, 2031. line 27 109030.3. (a) A person who violates Section 109030.1 or fails line 28 to comply with the requirements of subdivision (b) shall be liable line 29 for a civil assessed an administr ative penalty not to e xceed one line 30 thousand dollars ($1,000) for each day during which the violation line 31 continues, and, in addition, the person may be enjoined from line 32 continuing the violation. continues. For a second violation, the line 33 person shall be liable to the people of the state for a civil assessed line 34 an administrative penalty not to exceed two thousand five hundred line 35 dollars ($2,500) for each day during which the violation continues. line 36 Any ci vil administr ative penalties recei ved pursuant to this line 37 subdivision shall be deposited into the PF AS Penalty Account, line 38 that which is hereby created in the PFAS Oversight Fund created line 39 pursuant to Section 109030.4. Mone ys in the fund, upon 96 — 8 — SB 903
line 1 appropriation by the Le gislature, shall be used for the line 2 administration and enforcement of this chapter.
line 3 (b) If the department has reason to belie ve that a product line 4 contains intentionally added PFAS and is being distributed, sold, line 5 or offered for sale in violation of Section 109030.1, the department line 6 shall direct the manufacturer of the product to, within 30 days, do line 7 either of the following:
line 8 (1) Provide the department with independent, third-party line 9 laboratory test results demonstrating that the product does not line 10 contain the intentionally added PFAS.
line 11 (2) Notify persons who sell that product in the state that the sale line 12 of that product is prohibited in this state and provide the department line 13 with a list of the names and addresses of those notified. line 14 109030.4. (a) On or before January 1, 2027, the department line 15 shall adopt regulations to administer this chapter. The regulations line 16 shall establish and pro vide for the assessment of an application line 17 fee. Moneys received from the application fee shall be deposited line 18 into the PFAS Oversight Fund, that is hereby created in the State line 19 Treasury. Moneys in the account shall, upon appropriation by the line 20 Legislature, be used to cover the department’s reasonable costs of line 21 administering this chapter.
line 22 (b) The r egulations shall include an administr ative appeal line 23 process to review a penalty assessed pur suant to subdivision (a) line 24 of Section 109030.3, an action taken by the department pursuant line 25 to subdivision (b) of Section 109030.3, and a determination of line 26 unavoidable use pursuant to Section 109030.2.
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