California's Department of Toxic Substances Control recently proposed to add carpets and rugs containing perfluoroalkyl or polyfluoroalkyl substances (PFAS) as a Priority Product under the state’s Safer Consumer Products program. This is a new step in the evolution of how states and government agencies are seeking to regulate and reduce exposure to PFAS in the face of delayed federal action. Given the potential impact on the manufacturing and sale of related products, stakeholders and other consumer-facing parties would be well advised to pay close attention to this rulemaking process.
PFAS are a group of synthetic chemicals including approximately 5,000 fluorinated compounds, including perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and GenX chemicals. They have become known as “forever” chemicals due to the substances’ persistent nature and ability to bioaccumulate.
The Department of Toxic Substances Control’s (DTSC’s) proposed regulation is notable insofar as it provides an opportunity for the agency to address PFAS contamination on the front end before they enter into the environment, and is focused on PFAS exposure in connection with consumer products. This is in contrast to the majority of recent regulatory actions surrounding PFAS aimed at addressing PFAS contamination in the environment from disposals or releases.
DTSC’s proposed rulemaking seeks to add carpets or rugs containing PFAS as a Priority Product on the Priority Products List under the Safer Consumer Product (SCP) regulations. Under California law, a manufacturer is required to notify the DTSC when its product is listed as a Priority Product.
Additionally—if the proposed rulemaking is finalized—manufacturers may be required to either stop selling the regulated product in California or perform an “alternatives analysis” to determine if there is a safer substitute, among other requirements. The proposed listing would apply to consumer products made from natural or synthetic fabric that contain any PFAS and that are intended for use as floor covering inside commercial or residential buildings.
The listing will exclude the following:
DTSC cites its concern about the hazardous traits of PFAS, and their widespread presence in the environment, humans, and other living organisms. Following what DTSC has described as an “extensive review of the scientific literature and analysis of the known hazard traits of PFAS,” the agency views carpets and rugs treated with PFAS for stain- or soil-resistance as potential long-term sources of widespread human and ecological exposure to this class of chemicals that have the potential to contribute to or cause significant adverse health impacts.
DTSC notes that PFAS are not currently regulated by the Consumer Product Safety Commission, Food and Drug Administration, or Occupational Safety and Health Administration. DTSC also notes that the Environmental Protection Agency’s limited effort at regulating PFAS in the environment does not overlap or conflict with the proposed Priority Product pairing.
The touted benefits of the proposed regulatory action include mitigation of widespread adverse health and environmental impacts, as well as costs of these impacts to the State of California. DTSC further posits that manufacturers will be encouraged to evaluate the necessity of PFAS in their carpets and rugs, and seek safer alternatives. In a more general sense, the proposed listing seeks to “protect public health by reducing exposure to potentially harmful chemicals.” This rationale could easily be expanded to justify further regulation of PFAS in other products.
Indeed, since DTSC’s proposed designation of carpets and rugs containing PFAS, the agency has proposed listing other PFAS-containing products, including textile and leather treatments containing PFAS, and has requested additional information from stakeholders about the current use of PFAS in food packaging.
DTSC’s proposed listing, however, is not without its issues and, if finalized, it has the potential to have a substantial impact on the sale and manufacturing of these products within California. Not unique to DTSC’s proposed listing, critics point out that the science cited by DTSC may not be as well settled as suggested.
Further, DTSC’s attempt to regulate PFAS as a class—which describes a family consisting of thousands of chemicals, most of which have little or no published toxicity data—has been attacked as too far reaching and brings with it the potential to jeopardize other potentially beneficial consumer products. As such, stakeholders and other consumer-facing parties should closely monitor DTSC’s final rulemaking process.
For those stakeholders that want to get involved, DTSC continues to seek comments on this proposal, with a deadline to submit currently scheduled for Monday, April 13, 2020 by 11:59 pm PST. Comments are reviewed and considered before a final determination on the new rule. A public hearing on the proposal is currently scheduled for April 13, 2020, from 9:00 am to 1:00 pm.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Collie James, IV
Glen R. Stuart
Ella Foley Gannon
 Given COVID-19 precautions, the date/time of the public comment deadline and public hearing is subject to change.