The nationwide campaign against the production and use of perfluoroakyl and polyfluoroakyl-containing products continues in California, with the California assembly passing expansive legislation to ban the use of up to potentially 12,000 separate chemicals in cosmetics.
On May 26, 2022, the California State Assembly passed A.B. 2771. Introduced by assembly member Laura Friedman (D-Glendale), the bill seeks to amend the state’s health and safety code to include a complete ban of personal care products that contain intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS). If, as expected, some version of the proposed amendment is approved by the senate and governor and enacted into law, the proposed amendment would make the express finding that “PFAS have been linked by scientific, peer-reviewed research to severe health problems, including breast cancer and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption.” It would also make the express finding that “PFAS chemicals have been found in a wide variety of cosmetics and personal care products, including foundation, mascara, lipstick, and various eye and face products.” (Proposed Amendment to California Health and Safety Code Section 108981.)
Friedman, along with many consumer rights advocates, praises the bill as “a critical step towards reducing unnecessary exposure.” The proposed bill is highly problematic, however, from the standpoint of the personal care/cosmetics industry, which represents several billion dollars per year in revenue in California alone. First and foremost, A.B. 2771 drastically expands the existing prohibition against the addition of PFAS into cosmetics, seeking to exclude the use of any “fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” While appearing to be fairly tailored to a single class of chemicals, the EPA’s CompTox Chemicals Dashboard: Master List of PFAS Substances currently reports a total of 12,034 chemicals that fall under A.B. 2771’s description. It is currently unknown how the state will go about enforcing the expansive ban and what PFAS, if any, will take priority in their exclusion. It is further unknown what the precise boundaries of the terminology “intentionally added” will be applied.
At this point, the only thing that can be predicted with certainty is that civil litigation is bound to follow the passage of A.B. 2711 in California—most likely in the form of consumer class actions. For, although A.B. 2711 itself does not provide for civil penalties for violations of the proposed act, California’s Unfair Competition Law (Business & Professions Code Section 17200) permits private citizens to seek an injunction and financial restitution against any business for alleged “unlawful” acts. This broad language, combined with the Unfair Competition Law’s four-year statute of limitations, means that certification of a class of consumers for the purchase of PFAS containing cosmetics could theoretically encompass millions of individual plaintiffs. Restitution on a class-wide basis would require disgorgement of four years of profits for a single company. It is therefore of critical importance for companies to remain up-to-date as these developments continue in order to ensure they can adapt early and often to the imminent changes to their markets.
Originally published 1 June 2022
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