AB 2515: Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS).
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2024-09-30
Current Status:
Passed
(2024-09-30: Chaptered by Secretary of State - Chapter 1008, Statutes of 2024.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
This bill bans making, distributing, selling, or offering for sale in California any menstrual product (for example, tampons, pads, cups, disks, sponges, or menstruation underwear) that contains PFAS, a class of long‑lasting fluorinated chemicals. It requires the Department of Toxic Substances Control to publish approved PFAS testing methods, require manufacturers to register and certify products, allows the state to issue violation notices, seek civil or administrative fines (at least $10,000 per violation), and sue to enforce the ban, with penalties placed in a new T.A.M.P.O.N. Act Fund.
The summary is provided by generative AI which can make mistakes. For original language, please view the details in the table below.
The Hazardous Waste Control Law regulates the use and disposal of hazardous materials. Existing law permits the Department of Toxic Substances Control or any local officer or agency authorized to enforce the Hazardous Waste Control Law to require specified parties to furnish and transmit certain information relating to hazardous substances, hazardous wastes, and hazardous materials. A violation of the Hazardous Waste Control Law is a crime.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain regulated PFAS, as defined. The bill would require the Department of Toxic Substances Control to adopt regulations on or before January 1, 2029, as specified, for the purposes of implementing, interpreting, enforcing, or making specific these provisions. The bill would require the department to publish on its internet website, on or before January 1, 2027, a list of accepted testing methods for testing for regulated PFAS in menstrual products. The bill would require a manufacturer of menstrual products to register with the department, on or before July 1, 2029, and to provide to the department specified information and a registration fee. The bill would require the department to issue a notice of violation of the above provisions under specified circumstances, including that the department determines that a violation of the regulations described above has occurred or the department receives a report of an alleged violation and verifies that the violation alleged in the report occurred through its own independent testing, verification, or inspection. The bill would make a violation of these provisions punishable by administrative or civil penalties, as specified, and would authorize the Attorney General, on behalf of the department or on behalf of the people of the state at the request of the department, to bring an action to enforce these provisions. The bill would create, and would require all moneys collected from penalties to be deposited in, the T.A.M.P.O.N. Act Fund. The bill would make the departments duties to initiate, implement, or enforce any of these requirements contingent upon sufficient funds in the Toxic Substances Control Account, as determined by the Department of Finance, and an appropriation by the Legislature for the purposes of implementing and enforcing the requirements.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Hazardous Waste Control Law regulates the use and disposal of hazardous materials. Existing law permits the Department of Toxic Substances Control or any local officer or agency authorized to enforce the Hazardous Waste Control Law to require specified parties to furnish and transmit certain information relating to hazardous substances, hazardous wastes, and hazardous materials. A violation of the Hazardous Waste Control Law is a crime.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain regulated PFAS, as defined. The bill would require the Department of Toxic Substances Control to adopt regulations on or before January 1, 2029, as specified, for the purposes of implementing, interpreting, enforcing, or making specific these provisions. The bill would require the department to publish on its internet website, on or before January 1, 2027, a list of accepted testing methods for testing for regulated PFAS in menstrual products. The bill would require a manufacturer of menstrual products to register with the department, on or before July 1, 2029, and to provide to the department specified information and a registration fee. The bill would require the department to issue a notice of violation of the above provisions under specified circumstances, including that the department determines that a violation of the regulations described above has occurred or the department receives a report of an alleged violation and verifies that the violation alleged in the report occurred through its own independent testing, verification, or inspection. The bill would make a violation of these provisions punishable by administrative or civil penalties, as specified, and would authorize the Attorney General, on behalf of the department or on behalf of the people of the state at the request of the department, to bring an action to enforce these provisions. The bill would create, and would require all moneys collected from penalties to be deposited in, the T.A.M.P.O.N. Act Fund. The bill would make the departments duties to initiate, implement, or enforce any of these requirements contingent upon sufficient funds in the Toxic Substances Control Account, as determined by the Department of Finance, and an appropriation by the Legislature for the purposes of implementing and enforcing the requirements.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Hazardous Waste Control Law regulates the use and disposal of hazardous materials. Existing law permits the Department of Toxic Substances Control or any local officer or agency authorized to enforce the Hazardous Waste Control Law to require specified parties to furnish and transmit certain information relating to hazardous substances, hazardous wastes, and hazardous materials. A violation of the Hazardous Waste Control Law is a crime.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain regulated PFAS, as defined. The bill would authorize require the Department of Toxic Substances Control to adopt guidance or regulations, regulations on or before January 1, 2029, as specified, for the purposes of implementing and enforcing implementing, interpreting, enforcing, or making specific these provisions. The bill would require the department to issue guidance related to publish on its internet website, on or before January 1, 2027, a list of accepted testing methods for testing for regulated PFAS in menstrual products. The bill would require a manufacturer of menstrual products to register with the department, on or before July 1, 2029, and to provide to the department specified information and a registration fee. The bill would authorize require the department to issue a notice of violation of the above provisions under specified circumstances, including that the department has provided the manufacturer written notice of the alleged violation and, if mandated by the department, has failed to take corrective or mitigating actions to bring the product into compliance, and would specify when an initial and subsequent violations are deemed to have occurred. The bill would require the department and the manufacturer to post on their internet websites, and the manufacturer to post on their social media accounts, that a notice of violation has been issued, as specified. determines that a violation of the regulations described above has occurred or the department receives a report of an alleged violation and verifies the alleged report through its own independent testing, verification, or inspection. The bill would make a violation of these provisions punishable by administrative or civil penalties, as specified, and would authorize the Attorney General by request of the department, a city attorney, a county counsel, or a city prosecutor General, on behalf of the department or on behalf of the people of the state at the request of the department, to bring an action to enforce these provisions. The bill would create, and would require all moneys collected from penalties to be deposited in, the T.A.M.P.O.N. Act Fund. The bill would make the departments duties to initiate, implement, or enforce any of these requirements contingent upon sufficient funds in the Toxic Substances Control Account, as determined by the Department of Finance, and an appropriation by the Legislature for the purposes of implementing and enforcing the requirements.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Hazardous Waste Control Law regulates the use and disposal of hazardous materials. Existing law permits the Department of Toxic Substances Control or any local officer or agency authorized to enforce the Hazardous Waste Control Law to require specified parties to furnish and transmit certain information relating to hazardous substances, hazardous wastes, and hazardous materials. A violation of the Hazardous Waste Control Law is a crime.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain regulated PFAS, as defined. The bill would authorize the Department of Toxic Substances Control to adopt guidance or regulations, as specified, for the purposes of implementing and enforcing these provisions. The bill would require the department to issue guidance related to testing for regulated PFAS in menstrual products. The bill would authorize the department to issue a notice of violation of the above provisions under specified circumstances, including that the department has provided the manufacturer written notice of the alleged violation and, if mandated by the department, has failed to take corrective or mitigating actions to bring the product into compliance, and would specify when an initial and subsequent violations are deemed to have occurred. The bill would require the department and the manufacturer to post on their internet websites, and the manufacturer to post on their social media accounts, that a notice of violation has been issued, as specified. The bill would make a violation of these provisions punishable by civil penalties, as specified, and would authorize the Attorney General by request of the department, a city attorney, a county counsel, or a city prosecutor to bring an action to enforce these provisions. The bill would create, and would require all moneys collected from penalties to be deposited in, the T.A.M.P.O.N. Act Fund.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Hazardous Waste Control Law regulates the use and disposal of hazardous materials. Existing law permits the Department of Toxic Substances Control or any local officer or agency authorized to enforce the Hazardous Waste Control Law to require specified parties to furnish and transmit certain information relating to hazardous substances, hazardous wastes, and hazardous materials. A violation of the Hazardous Waste Control Law is a crime.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain regulated PFAS, as defined. The bill would authorize the Department of Toxic Substances Control to adopt guidance or regulations, as specified, for the purposes of implementing and enforcing these provisions. The bill would require the department to issue guidance related to testing for regulated PFAS in menstrual products. The bill would authorize the department to issue a notice of violation of the above provisions under specified circumstances, including that the department has provided the manufacturer written notice of the alleged violation and the manufacturer has failed to respond to the notice and, if mandated by the department, has failed to take corrective or mitigating actions to bring the product into compliance, and would specify when an initial and subsequent violations are deemed to have occurred. The bill would require the department and the manufacturer to post on their internet websites, and the manufacturer to post on their social media accounts, that a notice of violation has been issued, as specified. The bill would make a violation of these provisions punishable by civil penalties, as specified, and would authorize the Attorney General by request of the department, a city attorney, a county counsel, or a city prosecutor to bring an action to enforce these provisions. The bill would create, and would require all moneys collected from penalties to be deposited in, the T.A.M.P.O.N. Act Fund.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Hazardous Waste Control Law regulates the use and disposal of hazardous materials. Existing law permits the Department of Toxic Substances Control or any local officer or agency authorized to enforce the Hazardous Waste Control Law to require specified parties to furnish and transmit certain information relating to hazardous substances, hazardous wastes, and hazardous materials. A violation of the Hazardous Waste Control Law is a crime.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain regulated PFAS, as defined. The bill would authorize the Department of Toxic Substances Control to adopt guidance or regulations, as specified, for the purposes of implementing and enforcing these provisions. The bill would require the department to issue guidance related to testing for regulated PFAS in menstrual products. The bill would authorize the department to issue a cease and desist order to a manufacturer of a menstrual product under specified circumstances. authorize the department to issue a notice of violation of the above provisions under specified circumstances, including that the department has provided the manufacturer written notice of the alleged violation and the manufacturer has failed to respond to the notice and, if mandated by the department, has failed to take corrective or mitigating actions to bring the product into compliance, and would specify when an initial and subsequent violations are deemed to have occurred. The bill would require the department and the manufacturer to post on their internet websites, and the manufacturer to post on their social media accounts, that a notice of violation has been issued, as specified. The bill would make a violation of these provisions punishable by civil penalties, as specified, and would authorize the Attorney General by request of the department, a city attorney, a county counsel, or a city prosecutor to bring an action to enforce these provisions. The bill would create, and would require all moneys collected from penalties to be deposited in, the T.A.M.P.O.N. Act Fund. The bill would also authorize any person to bring an action in superior court for any injury suffered as a result of a product sold in violation of this prohibition.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Hazardous Waste Control Law regulates the use and disposal of hazardous materials. Existing law permits the Department of Toxic Substances Control or any local officer or agency authorized to enforce the Hazardous Waste Control Law to require specified parties to furnish and transmit certain information relating to hazardous substances, hazardous wastes, and hazardous materials. A violation of the Hazardous Waste Control Law is a crime.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain regulated PFAS, as defined. The bill would authorize the Department of Toxic Substances Control to adopt guidance or regulations, as specified, for the purposes of implementing and enforcing these provisions. The bill would require the department to issue guidance related to testing for regulated PFAS in menstrual products and would exempt that guidance from the Administrative Procedure Act. products. The bill would authorize the department to issue a cease and desist order to a manufacturer of a menstrual product under specified circumstances. The bill would make a violation of these provisions punishable by civil penalties, as specified, and would authorize the Attorney General by request of the department, a city attorney, a county counsel, or a city prosecutor to bring an action to enforce these provisions. The bill would create, and would require all moneys collected from penalties to be deposited in, the T.A.M.P.O.N. Act Fund. The bill would also authorize any person to bring an action in superior court for any injury suffered as a result of a product sold in violation of this prohibition.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Hazardous Waste Control Law regulates the use and disposal of hazardous materials. Existing law permits the Department of Toxic Substances Control or any local officer or agency authorized to enforce the Hazardous Waste Control Law to require specified parties to furnish and transmit certain information relating to hazardous substances, hazardous wastes, and hazardous materials. A violation of the Hazardous Waste Control Law is a crime.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain regulated PFAS, as defined. The bill would authorize the Department of Toxic Substances Control to adopt guidance or regulations, as specified, for the purposes of implementing and enforcing these provisions. The bill would exempt the guidance and regulations from the Administrative Procedure Act. The bill would require the department to issue guidance related to testing for regulated PFAS in menstrual products. products and would exempt that guidance from the Administrative Procedure Act. The bill would authorize the department to issue a cease and desist order to a manufacturer of a menstrual product under specified circumstances. The bill would make a violation of these provisions punishable by civil penalties, as specified, and would authorize the Attorney General by request of the department, a city attorney, a county counsel, or a city prosecutor to bring an action to enforce these provisions. The bill would create, and would require all moneys collected from penalties to be deposited in, the T.A.M.P.O.N. Act Fund. The bill would also authorize any person to bring an action in superior court for any injury suffered as a result of a product sold in violation of this prohibition.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Hazardous Waste Control Law regulates the use and disposal of hazardous materials. Existing law permits the Department of Toxic Substances Control or any local officer or agency authorized to enforce the Hazardous Waste Control Law to require specified parties to furnish and transmit certain information relating to hazardous substances, hazardous wastes, and hazardous materials. A violation of the Hazardous Waste Control Law is a crime.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from selling manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain regulated PFAS, as defined. The bill would require, no later than January 1, 2027, the Department of Toxic Substances Control (DTSC), in consultation with the State Department of Public Health, to identify and assess the hazards of chemicals or chemical classes that can provide the same or similar function in menstrual products as regulated PFAS and that can impact vulnerable populations and to make this information publically available on the DTSCs internet website. The bill would authorize the department to adopt Department of Toxic Substances Control to adopt guidance or regulations, as specified, for the purposes of implementing and enforcing these provisions. The bill would exempt the guidance and regulations from the Administrative Procedure Act. The bill would require the department to issue guidance related to testing for regulated PFAS in menstrual products. The bill would authorize the department to issue a cease and desist order to a manufacturer of a menstrual product under specified circumstances. The bill would make a violation of these provisions punishable by civil fines, as specified, and would make any fine or order by the department appealable to the Board of Environmental Safety. penalties, as specified, and would authorize the Attorney General by request of the department, a city attorney, a county counsel, or a city prosecutor to bring an action to enforce these provisions. The bill would create, and would require all fines collected by the department moneys collected from penalties to be deposited in, the T.A.M.P.O.N. Act Fund. The bill would also authorize any person to bring an action in superior court for a violation of this prohibition, and would authorize the court to grant injunctive relief. any injury suffered as a result of a product sold in violation of this prohibition.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law, the Sherman Food, Drug, and Cosmetic Law, requires a package or box containing menstrual products that was manufactured on or after January 1, 2023, for sale or distribution in this state to have printed on the label a plain and conspicuous list of all ingredients, as defined, in the product, by weight, and prohibits the sale of a menstrual product in the state unless the menstrual product and the manufacturer of the menstrual product comply with the specified labeling requirements.
Existing law, beginning January 1, 2025, prohibits a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined.
This bill would similarly prohibit any person from selling in the state any menstrual products that contain regulated PFAS, as defined. The bill would require, no later than January 1, 2027, the Department of Toxic Substances Control (DTSC), in consultation with the State Department of Public Health, to identify and assess the hazards of chemicals or chemical classes that can provide the same or similar function in menstrual products as regulated PFAS and that can impact vulnerable populations and to make this information publically available on the DTSCs internet website. The bill would authorize the department to adopt regulations, as specified, for the purposes of implementing and enforcing these provisions. The bill would make a violation of these provisions punishable by civil fines, as specified, and would make any fine or order by the department appealable to the Board of Environmental Safety. The bill would create, and would require all fines collected by the department to be deposited in, the T.A.M.P.O.N. Act Fund. The bill would also authorize any person to bring an action in superior court for a violation of this prohibition, and would authorize the court to grant injunctive relief.
This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Article 15 (commencing with Section 25258) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:15.Menstrual Products25258.For the purposes of this article, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or regulated PFAS means the following:
(1)Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above a limit determined by the department, as measured in total organic fluorine.
25258.1.On or before January 1, 2029, the department shall adopt regulations to implement, interpret, enforce, or make specific this article.
25258.2.On or before January 1, 2027, the department shall publish on its internet website a list of accepted testing methods for testing for the presence of regulated PFAS in menstrual products and appropriate third-party accreditations for laboratories. The department may update the list of accepted testing methods as necessary.
25258.3.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated PFAS.
25258.4.(a)On or before July 1, 2029, a manufacturer of a menstrual product, as defined in this article, shall register with the department and provide to the department all of the following in the manner prescribed by the department pursuant to the regulations adopted pursuant to this article:
(1)The name and a description of each menstrual product.
(2)The applicable registration fee.
(3)(A)A statement of compliance certifying that each menstrual product is in compliance with this article.
(B)The department may request, and a manufacturer shall provide upon request, technical documentation, including analytical test results, to demonstrate compliance with this article. The certification and analytical tests shall comply with those published on the departments internet website pursuant to Section 25258.2.
(b)The department shall specify in regulation the manner for registering and the registration fee. The registration fee shall not exceed the departments reasonable costs of implementing this article.
25258.5.(a)The department shall issue a notice of violation to a person or entity in violation of this article if any of the following occurs:
(1)The departments testing or test results submitted as a part of the registration process pursuant to Section 25258.4 indicates that a menstrual product contains regulated PFAS.
(2)The department determines that a menstrual product contains regulated PFAS after finding PFAS as an ingredient identified on the products label.
(3)The department finds a violation of this article or any rule, regulation, standard, or requirement issued or adopted pursuant to this article.
(b)A notice of violation shall indicate the nature of the violation and may do any of the following:
(1)Assess an administrative or civil penalty against a person or entity in violation of this article.
(2)Require compliance with this article, including requiring the person or entity to cease the manufacture, sale, or distribution of a menstrual product in this state.
(c)The department may receive reports of alleged violations, including analytical test results, from consumers, businesses, research institutions, persons, entities, and not-for-profit entities, and shall verify those alleged reports through its own independent testing, verification, or inspection.
25258.6.(a)A violation of this article is punishable by a civil and administrative penalty.
(b)The department shall determine, on a case-by-case basis, the enforcement mechanism and the amount of any administrative or civil penalty assessed pursuant to this article. The minimum amount of an administrative or civil penalty assessed shall be ten thousand dollars ($10,000) for the first and any subsequent violation. Penalties may be assessed for each violation of a separate provision or, for continuing violations, for each day that the violation continues.
(c)In assessing the amount of a civil penalty for a violation of this article, the court may consider all of the following:
(1)The nature and extent of the violation.
(2)The number and severity of the violations.
(3)The economic effect of the penalty on the violator.
(4)Whether the violator took good faith measures to comply with this article and when the measures were taken.
(5)The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
(6)Whether there were contributing environmental factors about which a reasonable person knew or should have known.
(d)The Attorney General, on behalf of the department, may bring an action in superior court and the court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person or entity from violating any provision of this article. A proceeding under this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the department shall not be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
(e)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state at the request of the department.
(f)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court.
(g)(1)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury.
(2)The departments duties to initiate, implement, or enforce any requirement of this article are contingent upon sufficient funds in the Toxic Substances Control Account, as determined by the Department of Finance, and an appropriation by the Legislature for the purposes of implementing and enforcing the requirements of this article.
(3)Upon appropriation by the Legislature and subject to the determination in paragraph (2), if funds in the Toxic Substances Control Account are sufficient to finance the development of the regulations and the startup costs of the departments activities pursuant to this article, funds may be used as a loan by the department for the department to carry out this article until the T.A.M.P.O.N. Act Fund generates revenues sufficient to fund the departments reasonable costs of implementing this article and to reimburse any outstanding loans made from the Toxic Substances Control Account used to finance the development of the regulations and the startup costs of the departments activities pursuant to this article.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Article 15 (commencing with Section 25258) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:15.Menstrual Products25258.For the purposes of this article, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or regulated PFAS means the following:
(1)Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above a limit determined by the department, as measured in total organic fluorine.
25258.1.On or before January 1, 2029, the department shall adopt regulations to implement, interpret, enforce, or make specific this article.
25258.2.On or before January 1, 2027, the department shall publish on its internet website a list of accepted testing methods for testing for the presence of regulated PFAS in menstrual products and appropriate third-party accreditations for laboratories. The department may update the list of accepted testing methods as necessary.
25258.3.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated PFAS.
25258.4.(a)On or before July 1, 2029, a manufacturer of a menstrual product, as defined in this article, shall register with the department and provide to the department all of the following in the manner prescribed by the department pursuant to the regulations adopted pursuant to this article:
(1)The name and a description of each menstrual product.
(2)The applicable registration fee.
(3)(A)A statement of compliance certifying that each menstrual product is in compliance with this article.
(B)The department may request, and a manufacturer shall provide upon request, technical documentation, including analytical test results, to demonstrate compliance with this article. The certification and analytical tests shall comply with those published on the departments internet website pursuant to Section 25258.2.
(b)The department shall specify in regulation the manner for registering and the registration fee. The registration fee shall not exceed the departments reasonable costs of implementing this article.
25258.5.(a)The department shall issue a notice of violation to a person or entity in violation of this article if any of the following occurs:
(1)The departments testing or test results submitted as a part of the registration process pursuant to Section 25258.4 indicates that a menstrual product contains regulated PFAS.
(2)The department determines that a menstrual product contains regulated PFAS after finding PFAS as an ingredient identified on the products label.
(3)The department finds a violation of this article or any rule, regulation, standard, or requirement issued or adopted pursuant to this article.
(b)A notice of violation shall indicate the nature of the violation and may do any of the following:
(1)Assess an administrative or civil penalty against a person or entity in violation of this article.
(2)Require compliance with this article, including requiring the person or entity to cease the manufacture, sale, or distribution of a menstrual product in this state.
(c)The department may receive reports of alleged violations, including analytical test results, from consumers, businesses, research institutions, persons, entities, and not-for-profit entities, and shall verify those alleged reports through its own independent testing, verification, or inspection.
25258.6.(a)A violation of this article is punishable by a civil and administrative penalty.
(b)The department shall determine, on a case-by-case basis, the enforcement mechanism and the amount of any administrative or civil penalty assessed pursuant to this article. The minimum amount of an administrative or civil penalty assessed shall be ten thousand dollars ($10,000) for the first and any subsequent violation. Penalties may be assessed for each violation of a separate provision or, for continuing violations, for each day that the violation continues.
(c)In assessing the amount of a civil penalty for a violation of this article, the court may consider all of the following:
(1)The nature and extent of the violation.
(2)The number and severity of the violations.
(3)The economic effect of the penalty on the violator.
(4)Whether the violator took good faith measures to comply with this article and when the measures were taken.
(5)The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
(6)Whether there were contributing environmental factors about which a reasonable person knew or should have known.
(d)The Attorney General, on behalf of the department, may bring an action in superior court and the court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person or entity from violating any provision of this article. A proceeding under this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the department shall not be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
(e)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state at the request of the department.
(f)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court.
(g)(1)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury.
(2)The departments duties to initiate, implement, or enforce any requirement of this article are contingent upon sufficient funds in the Toxic Substances Control Account, as determined by the Department of Finance, and an appropriation by the Legislature for the purposes of implementing and enforcing the requirements of this article.
(3)Upon appropriation by the Legislature and subject to the determination in paragraph (2), if funds in the Toxic Substances Control Account are sufficient to finance the development of the regulations and the startup costs of the departments activities pursuant to this article, funds may be used as a loan by the department for the department to carry out this article until the T.A.M.P.O.N. Act Fund generates revenues sufficient to fund the departments reasonable costs of implementing this article and to reimburse any outstanding loans made from the Toxic Substances Control Account used to finance the development of the regulations and the startup costs of the departments activities pursuant to this article.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Article 15 (commencing with Section 25258) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:15.Menstrual Products25258.For the purposes of this article, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or regulated PFAS means the following:
(1)Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above a limit determined by the department, as measured in total organic fluorine.
25258.1.The department may adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing this article. 25258.2.The department shall issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.25258.1.On or before January 1, 2029, the department shall adopt regulations to implement, interpret, enforce, or make specific this article.
25258.2.On or before January 1, 2027, the department shall publish on its internet website a list of accepted testing methods for testing for the presence of regulated PFAS in menstrual products and appropriate third-party accreditations for laboratories. The department may update the list of accepted testing methods as necessary.
25258.3.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated PFAS.
25258.4.(a)The department may issue a notice of violation of this article after all of the following occur:(1)The department has tested a sufficient sample size, as determined by the department, of the menstrual product alleged to be in violation of this article and found the presence of regulated PFAS.(2)The department has provided the manufacturer, via certified mail, written notice that does all of the following:(A)Describes the alleged violation, including the data suggesting the presence of regulated PFAS.(B)Requires corrective action by the manufacturer to bring the subject menstrual product into compliance, if applicable.(C)Provides the manufacturer with a 45-day period to respond in writing to provide information regarding the alleged violation, including, but not limited to, whether an exception applies and any mitigating or corrective action that the manufacturer has taken.(3)If mandated by the department, the manufacturer has failed to take corrective or mitigating actions to bring the subject menstrual product into compliance, within the 45-day period provided under subparagraph (C) of paragraph (2). The department may, in its sole discretion, extend the time period for a manufacturer to take any mitigation or corrective action.(b)(1)For the purposes of this article, an initial violation is deemed to have occurred upon the issuance of an initial notice of violation pursuant to subdivision (a) if the department finds that a person has manufactured, distributed, sold, or offered for sale a menstrual product in a single product line of the same brand, product type, size, and absorbency that contains regulated PFAS.(2)For the purposes of this article, a subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of this article.(c)The department shall post on its internet website that a notice of violation has been issued pursuant to subdivision (a).(d)(1)Upon the departments issuance of a notice of violation to a manufacturer, the manufacturer shall publish the notice of violation on their internet website and social media accounts.(2)The publication of the notice of violation by the manufacturer shall include the violation date, the product testing level, the brand, the product type, and any relevant lot or stock-keeping unit numbers.25258.5.(a)A violation of this article is punishable by a civil penalty not to exceed one hundred twenty-five thousand dollars ($125,000). (b)A second and subsequent violation of this article is punishable by a civil penalty not to exceed two hundred fifty thousand dollars ($250,000).(c)In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:(1)The nature and extent of the violation.(2)The number of, and severity of, the violations.(3)The economic effect of the penalty on the violator.(4)Whether the violator took good faith measures to comply with this chapter and when these measures were taken.(5)The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.(6)Whether there were contributing environmental factors about which a reasonable person knew or should have known. (d)The court may grant injunctive relief in any action brought pursuant to this section. (e)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state by the request of the department, by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor. (f)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court. (g)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury. The moneys deposited in the fund shall be available, upon appropriation by the Legislature, for expenditure by the department exclusively for the support of the department in carrying out the duties and responsibilities under this article.25258.4.(a)On or before July 1, 2029, a manufacturer of a menstrual product, as defined in this article, shall register with the department and provide to the department all of the following in the manner prescribed by the department pursuant to the regulations adopted pursuant to this article:
(1)The name and a description of each menstrual product.
(2)The applicable registration fee.
(3)(A)A statement of compliance certifying that each menstrual product is in compliance with this article.
(B)The department may request, and a manufacturer shall provide upon request, technical documentation, including analytical test results, to demonstrate compliance with this article. The certification and analytical tests shall comply with those published on the departments internet website pursuant to Section 25258.2.
(b)The department shall specify in regulation the manner for registering and the registration fee. The registration fee shall not exceed the departments reasonable costs of implementing this article.
25258.5.(a)The department shall issue a notice of violation to a person or entity in violation of this article if any of the following occurs:
(1)The departments testing or test results submitted as a part of the registration process pursuant to Section 25258.4 indicates that a menstrual product contains regulated PFAS.
(2)The department determines that a menstrual product contains regulated PFAS after finding PFAS as an ingredient identified on the products label.
(3)The department finds a violation of this article or any rule, regulation, standard, or requirement issued or adopted pursuant to this article.
(b)A notice of violation shall indicate the nature of the violation and may do any of the following:
(1)Assess an administrative or civil penalty against a person or entity in violation of this article.
(2)Require compliance with this article, including requiring the person or entity to cease the manufacture, sale, or distribution of a menstrual product in this state.
(c)The department may receive reports of alleged violations, including analytical test results, from consumers, businesses, research institutions, persons, entities, and not-for-profit entities, and shall verify those alleged reports through its own independent testing, verification, or inspection.
25258.6.(a)A violation of this article is punishable by a civil and administrative penalty.
(b)The department shall determine, on a case-by-case basis, the enforcement mechanism and the amount of any administrative or civil penalty assessed pursuant to this article. The minimum amount of an administrative or civil penalty assessed shall be ten thousand dollars ($10,000) for the first and any subsequent violation. Penalties may be assessed for each violation of a separate provision or, for continuing violations, for each day that the violation continues.
(c)In assessing the amount of a civil penalty for a violation of this article, the court may consider all of the following:
(1)The nature and extent of the violation.
(2)The number and severity of the violations.
(3)The economic effect of the penalty on the violator.
(4)Whether the violator took good faith measures to comply with this article and when the measures were taken.
(5)The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
(6)Whether there were contributing environmental factors about which a reasonable person knew or should have known.
(d)The Attorney General, on behalf of the department, may bring an action in superior court and the court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person or entity from violating any provision of this article. A proceeding under this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the department shall not be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
(e)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state at the request of the department.
(f)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court.
(g)(1)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury.
(2)The departments duties to initiate, implement, or enforce any requirement of this article are contingent upon sufficient funds in the Toxic Substances Control Account, as determined by the Department of Finance, and an appropriation by the Legislature for the purposes of implementing and enforcing the requirements of this article.
(3)Upon appropriation by the Legislature and subject to the determination in paragraph (2), if funds in the Toxic Substances Control Account are sufficient to finance the development of the regulations and the startup costs of the departments activities pursuant to this article, funds may be used as a loan by the department for the department to carry out this article until the T.A.M.P.O.N. Act Fund generates revenues sufficient to fund the departments reasonable costs of implementing this article and to reimburse any outstanding loans made from the Toxic Substances Control Account used to finance the development of the regulations and the startup costs of the departments activities pursuant to this article.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Article 15 (commencing with Section 25258) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:15.Menstrual Products25258.For the purposes of this article, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or regulated PFAS means the following:
(1)Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, a limit determined by the department, as measured in total organic fluorine.
25258.1.The department may adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing this article.
25258.2.The department shall issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
25258.3.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated PFAS.
25258.4.(a)The department may issue a notice of violation of this article after all of the following occur:
(1)The department has tested a sufficient sample size, as determined by the department, of the menstrual product alleged to be in violation of this article and found the presence of regulated PFAS.
(2)The department has provided the manufacturer, via certified mail, written notice that does all of the following:
(A)Describes the alleged violation, including the data suggesting the presence of regulated PFAS.
(B)Requires corrective action by the manufacturer to bring the subject menstrual product into compliance, if applicable.
(C)Provides the manufacturer with a 45-day period to respond in writing to provide information regarding the alleged violation, including, but not limited to, whether an exception applies and any mitigating or corrective action that the manufacturer has taken.
(3)If mandated by the department, the manufacturer has failed to take corrective or mitigating actions to bring the subject menstrual product into compliance, within the 45-day period provided under subparagraph (C) of paragraph (2). The department may, in its sole discretion, extend the time period for a manufacturer to take any mitigation or corrective action.
(b)(1)For the purposes of this article, an initial violation is deemed to have occurred upon the issuance of an initial notice of violation pursuant to subdivision (a) if the department finds that a person has manufactured, distributed, sold, or offered for sale a menstrual product in a single product line of the same brand, product type, size, and absorbency that contains regulated PFAS.
(2)For the purposes of this article, a subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of this article.
(c)The department shall post on its internet website that a notice of violation has been issued pursuant to subdivision (a).
(d)(1)Upon the departments issuance of a notice of violation to a manufacturer, the manufacturer shall publish the notice of violation on their internet website and social media accounts.
(2)The publication of the notice of violation by the manufacturer shall include the violation date, the product testing level, the brand, the product type, and any relevant lot or stock-keeping unit numbers.
25258.5.(a)A violation of this article is punishable by a civil penalty not to exceed one hundred twenty-five thousand dollars ($125,000).
(b)A second and subsequent violation of this article is punishable by a civil penalty not to exceed two hundred fifty thousand dollars ($250,000).
(c)In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:
(1)The nature and extent of the violation.
(2)The number of, and severity of, the violations.
(3)The economic effect of the penalty on the violator.
(4)Whether the violator took good faith measures to comply with this chapter and when these measures were taken.
(5)The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
(6)Whether there were contributing environmental factors about which a reasonable person knew or should have known.
(d)The court may grant injunctive relief in any action brought pursuant to this section.
(e)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state by the request of the department, by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
(f)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court.
(g)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury. The moneys deposited in the fund shall be available, upon appropriation by the Legislature, for expenditure by the department exclusively for the support of the department in carrying out the duties and responsibilities under this article.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Article 15 (commencing with Section 25258) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:15.Menstrual Products25258.For the purposes of this article, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or regulated PFAS means the following:
(1)Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, as measured in total organic fluorine.
25258.1.The department may adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing this article.
25258.2.The department shall issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
25258.3.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated PFAS.
25258.4.(a)The department may issue a notice of violation of this article after all of the following occur:
(1)The department has tested a sufficient sample size, as determined by the department, of the menstrual product alleged to be in violation of this article and found the presence of regulated PFAS.
(2)The department has provided the manufacturer, via certified mail, written notice that does all of the following:
(A)Describes of the alleged violation, including the data suggesting the presence of regulated PFAS.
(B)Requires corrective action by the manufacturer to bring the subject menstrual product into compliance, if applicable.
(C)Provides the manufacturer with a 45-day period to respond in writing to provide information regarding the alleged violation, including, but not limited to, whether an exception applies and any mitigating or corrective action that the manufacturer has taken.
(3)The department determines a violation of this article has occurred and the manufacturer has failed to respond to the notice provided pursuant to subdivision (a) and, if If mandated by the department, the manufacturer has failed to take corrective or mitigating actions to bring the subject menstrual product into compliance. compliance, within the 45-day period provided under subparagraph (C) of paragraph (2). The department may, in its sole discretion, extend the time period for a manufacturer to take any mitigation or corrective action.
(b)(1)For the purposes of this article, an initial violation is deemed to have occurred upon the issuance of an initial notice of violation pursuant to subdivision (a) if the department finds that a person has manufactured, distributed, sold, or offered for sale a menstrual product in a single product line of the same brand, product type, size, and absorbency. absorbency that contains regulated PFAS.
(2)For the purposes of this article, a subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of this article.
(c)The department shall post on its internet website that a notice of violation has been issued pursuant to subdivision (a).
(d)(1)Upon the departments issuance of a notice of violation to a manufacturer, the manufacturer shall publish the notice of violation on their internet website and social media accounts.
(2)The publication of the notice of violation by the manufacturer shall include the violation date, the product testing level, the brand, the product type, and any relevant lot or stock-keeping unit numbers.
25258.5.(a)A violation of this article is punishable by a civil penalty not to exceed one hundred twenty-five thousand dollars ($125,000).
(b)A second and subsequent violation of this article is punishable by a civil penalty not to exceed two hundred fifty thousand dollars ($250,000).
(c)In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:
(1)The nature and extent of the violation.
(2)The number of, and severity of, the violations.
(3)The economic effect of the penalty on the violator.
(4)Whether the violator took good faith measures to comply with this chapter and when these measures were taken.
(5)The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
(6)Whether there were contributing environmental factors about which a reasonable person knew or should have known.
(c)(d)The court may grant injunctive relief in any action brought pursuant to this section.
(d)(e)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state by the request of the department, by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
(e)(f)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court.
(f)(g)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury. The moneys deposited in the fund shall be available, upon appropriation by the Legislature, for expenditure by the department exclusively for the support of the department in carrying out the duties and responsibilities under this article.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Article 15 (commencing with Section 25258) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:15.Menstrual Products25258.For the purposes of this article, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances substances or regulated PFAS means the following:
(1)Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, as measured in total organic fluorine.
25258.1.The department may adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing this article.
25258.2.The department shall issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
25258.3.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS.
25258.4.If the department finds that a menstrual product contains regulated PFAS, and reasonably suspects that imminent harm would result from the continued sale of the product, the department may issue a cease and desist order to the manufacturer of the menstrual product. 25258.5.(a)Any person may bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of this article.(b)Exemplary damages, as provided for in Section 3294 of the Civil Code, may also be awarded in any action brought pursuant to this section.25258.4.(a)The department may issue a notice of violation of this article after all of the following occur:
(1)The department has tested a sufficient sample size, as determined by the department, of the menstrual product alleged to be in violation of this article and found the presence of regulated PFAS.
(2)The department has provided the manufacturer, via certified mail, written notice that does all of the following:
(A)Describes of the alleged violation, including the data suggesting the presence of regulated PFAS.
(B)Requires corrective action by the manufacturer to bring the subject menstrual product into compliance, if applicable.
(C)Provides the manufacturer with a 45-day period to respond in writing to provide information regarding the alleged violation, including, but not limited to, whether an exception applies and any mitigating or corrective action that the manufacturer has taken.
(3)The department determines a violation of this article has occurred and the manufacturer has failed to respond to the notice provided pursuant to subdivision (a) and, if mandated by the department, has failed to take corrective or mitigating actions to bring the subject menstrual product into compliance.
(b)(1)For the purposes of this article, an initial violation is deemed to have occurred upon the issuance of an initial notice of violation pursuant to subdivision (a) if the department finds that a person has manufactured, distributed, sold, or offered for sale a menstrual product in a single product line of the same brand, product type, size, and absorbency.
(2)For the purposes of this article, a subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of this article.
(c)The department shall post on its internet website that a notice of violation has been issued pursuant to subdivision (a).
(d)(1)Upon the departments issuance of a notice of violation to a manufacturer, the manufacturer shall publish the notice of violation on their internet website and social media accounts.
(2)The publication of the notice of violation by the manufacturer shall include the violation date, the product testing level, the brand, the product type, and any relevant lot or stock-keeping unit numbers.
25258.6.25258.5.(a)A violation of this article is punishable by a civil penalty not to exceed five thousand dollars ($5,000) per day. one hundred twenty-five thousand dollars ($125,000).
(b)A second and subsequent violation of this article is punishable by a civil penalty not to exceed ten thousand dollars ($10,000) per day. two hundred fifty thousand dollars ($250,000).
(c)For purposes of this section, an initial violation is deemed to have occurred where the department finds, using a sufficient sample size, as determined by the department, of a single product line of the same brand, product type, size, and absorbency, as applicable, that a person has manufactured, distributed, sold, or offered for sale a menstrual product that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS.(d)A subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of this section after a violation pursuant to subdivision (c) has occurred. (e)(c)The court may grant injunctive relief in any action brought pursuant to this section.
(f)(d)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state by the request of the department, by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
(g)(e)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court.
(h)(f)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury. The moneys deposited in the fund shall be available, upon appropriation by the Legislature, for expenditure by the department exclusively for the support of the department in carrying out the duties and responsibilities under this article.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Article 15 (commencing with Section 25258) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:15.Menstrual Products25258.For the purposes of this article, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS means either of the following:
(1)Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, as measured in total organic fluorine.
25258.1.The department may adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing this article.
25258.2.(a)The department shall issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
(b)Notwithstanding any other law, guidance adopted to implement this section is not subject to the requirements of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).25258.3.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS.
25258.4.If the department finds that a menstrual product contains regulated PFAS, and reasonably suspects that imminent harm would result from the continued sale of the product, the department may issue a cease and desist order to the manufacturer of the menstrual product.
25258.5.(a)Any person may bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of this article.
(b)Exemplary damages, as provided for in Section 3294 of the Civil Code, may also be awarded in any action brought pursuant to this section.
25258.6.(a)A violation of this article is punishable by a civil penalty not to exceed five thousand dollars ($5,000) per day.
(b)A second and subsequent violation of this article is punishable by a civil penalty not to exceed ten thousand dollars ($10,000) per day.
(c)For purposes of this section, an initial violation is deemed to have occurred where the department finds, using a sufficient sample size, as determined by the department, of a single product line of the same brand, product type, size, and absorbency, as applicable, that a person has manufactured, distributed, sold, or offered for sale a menstrual product that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS.
(d)A subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of this section after a violation pursuant to subdivision (c) has occurred.
(c)(e)The court may grant injunctive relief in any action brought pursuant to this section.
(d)(f)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state by the request of the department, by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
(e)(g)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court.
(f)(h)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury. The moneys deposited in the fund shall be available, upon appropriation by the Legislature, for expenditure by the department exclusively for the support of the department in carrying out the duties and responsibilities under this article.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Article 15 (commencing with Section 25258) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:15.Menstrual Products25258.For the purposes of this article, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS means either of the following:
(1)Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, as measured in total organic fluorine.
25258.1.(a)The department may adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing this article.
(b)Notwithstanding any other law, regulations or guidance adopted to implement this article are not subject to the requirements of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).25258.2.(a)The department shall issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
(b)Notwithstanding any other law, guidance adopted to implement this section is not subject to the requirements of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
25258.3.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS.
25258.4.If the department finds that a menstrual product contains regulated PFAS, and reasonably suspects that imminent harm would result from the continued sale of the product, the department may issue a cease and desist order to the manufacturer of the menstrual product.
25258.5.(a)Any person may bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of this article.
(b)Exemplary damages, as provided for in Section 3294 of the Civil Code, may also be awarded in any action brought pursuant to this section.
25258.6.(a)A violation of this article is punishable by a civil penalty not to exceed five thousand dollars ($5,000) per day.
(b)A second and subsequent violation of this article is punishable by a civil penalty not to exceed ten thousand dollars ($10,000) per day.
(c)The court may grant injunctive relief in any action brought pursuant to this section.
(d)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state by the request of the department, by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
(e)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court.
(f)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury. The moneys deposited in the fund shall be available, upon appropriation by the Legislature, for expenditure by the department exclusively for the support of the department in carrying out the duties and responsibilities under this article.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Article 15 (commencing with Section 25258) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:15.Menstrual Products25258.For the purposes of this article, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS means either of the following:
(1)Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, as measured in total organic fluorine.
25258.1.(a)The department may adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing this article.
(b)Notwithstanding any other law, regulations or guidance adopted to implement this article are not subject to the requirements of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
25258.2.The department shall issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
25258.3.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS.
25258.4.If the department finds that a menstrual product contains regulated PFAS, and reasonably suspects that imminent harm would result from the continued sale of the product, the department may issue a cease and desist order to the manufacturer of the menstrual product.
25258.5.(a)Any person may bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of this article.
(b)Exemplary damages, as provided for in Section 3294 of the Civil Code, may also be awarded in any action brought pursuant to this section.
25258.6.(a)A violation of this article is punishable by a civil penalty not to exceed five thousand dollars ($5,000) per day.
(b)A second and subsequent violation of this article is punishable by a civil penalty not to exceed ten thousand dollars ($10,000) per day.
(c)The court may grant injunctive relief in any action brought pursuant to this section.
(d)Actions may be brought pursuant to this section by the Attorney General in the name of the people of the state by the request of the department, by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
(e)A prevailing plaintiff bringing an action pursuant to this article shall be awarded attorneys fees and costs by the court.
(f)Moneys from penalties collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury. The moneys deposited in the fund shall be available, upon appropriation by the Legislature, for expenditure by the department exclusively for the support of the department in carrying out the duties and responsibilities under this article.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 2.Chapter 14.5 (commencing with Section 108990) is added to Part 3 of Division 104 of the Health and Safety Code, to read:14.5.Menstrual Products108990.For the purposes of this chapter, the following definitions apply:(a)Department means the Department of Toxic Substances Control.(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS means either of the following:(1)PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, as measured in total organic fluorine.108991.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS.108992.(a)No later than January 1, 2027, the department, in consultation with the State Department of Public Health, shall use existing information to identify and assess the hazards of chemicals or chemical classes that can provide the same or similar function in menstrual products as regulated PFAS and that can impact vulnerable populations. The department shall make this information publically available on its internet website.(b)The department may adopt regulations as necessary for the purpose of implementing, administering, and enforcing this chapter.(c)Prior to issuing regulations pursuant to this chapter, the department shall engage with relevant stakeholders to ensure the availability of adequate expertise and input. The input received from stakeholders shall be considered when adopting regulations.(d)Any penalty provided for in this chapter, and any order issued by the department under this chapter, may be appealed to the Board of Environmental Safety.108993.(a)Any person may bring a civil action in a court of competent jurisdiction to enforce the requirements of this chapter. The court may grant injunctive relief in any action brought pursuant to this section.(b)Exemplary damages, as provided for in Section 3294 of the Civil Code, may also be awarded in any action brought pursuant to this section.(c)When the person bringing an action pursuant to this section is the prevailing party, they shall be awarded attorneys fees and costs by the court.108994.(a)A violation of this chapter is punishable by a civil fine not to exceed five thousand dollars ($5,000).(b)A second and subsequent violation of this chapter is punishable by a civil fine not to exceed ten thousand dollars ($10,000).(c)Fines collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury. The moneys deposited in the fund shall be available, upon appropriation by the Legislature, for expenditure by the department exclusively for the support of the department in carrying out the duties and responsibilities under this chapter.This act shall be known, and may be cited, as the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
SEC. 2.Chapter 14.5 (commencing with Section 108990) is added to Part 3 of Division 104 of the Health and Safety Code, to read:14.5.Menstrual Products108990.For the purposes of this chapter, the following definitions apply:
(a)Department means the Department of Toxic Substances Control.
(b)Menstrual product means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
(c)Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(d)Regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS means either of the following:
(1)PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
(2)Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, as measured in total organic fluorine.
108991.A person shall not manufacture, distribute, sell, or offer for sale in the state a menstrual product that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS.
108992.(a)No later than January 1, 2027, the department, in consultation with the State Department of Public Health, shall use existing information to identify and assess the hazards of chemicals or chemical classes that can provide the same or similar function in menstrual products as regulated PFAS and that can impact vulnerable populations. The department shall make this information publically available on its internet website.
(b)The department may adopt regulations as necessary for the purpose of implementing, administering, and enforcing this chapter.
(c)Prior to issuing regulations pursuant to this chapter, the department shall engage with relevant stakeholders to ensure the availability of adequate expertise and input. The input received from stakeholders shall be considered when adopting regulations.
(d)Any penalty provided for in this chapter, and any order issued by the department under this chapter, may be appealed to the Board of Environmental Safety.
108993.(a)Any person may bring a civil action in a court of competent jurisdiction to enforce the requirements of this chapter. The court may grant injunctive relief in any action brought pursuant to this section.
(b)Exemplary damages, as provided for in Section 3294 of the Civil Code, may also be awarded in any action brought pursuant to this section.
(c)When the person bringing an action pursuant to this section is the prevailing party, they shall be awarded attorneys fees and costs by the court.
108994.(a)A violation of this chapter is punishable by a civil fine not to exceed five thousand dollars ($5,000).
(b)A second and subsequent violation of this chapter is punishable by a civil fine not to exceed ten thousand dollars ($10,000).
(c)Fines collected pursuant to this section shall be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury. The moneys deposited in the fund shall be available, upon appropriation by the Legislature, for expenditure by the department exclusively for the support of the department in carrying out the duties and responsibilities under this chapter.
|
Date
|
Status
|
|---|---|
| Sep 30, 2024 | Chaptered by Secretary of State - Chapter 1008, Statutes of 2024. |
| Sep 30, 2024 | Approved by the Governor. |
| Sep 11, 2024 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 29, 2024 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 69. Noes 0.). |
| Aug 29, 2024 | Assembly Rule 77 suspended. |
| Aug 28, 2024 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 30 pursuant to Assembly Rule 77. |
| Aug 28, 2024 | Read third time. Passed. Ordered to the Assembly. (Ayes 33. Noes 0.). |
| Aug 26, 2024 | Read second time. Ordered to third reading. |
| Aug 23, 2024 | Read third time and amended. Ordered to second reading. |
| Aug 19, 2024 | Read second time. Ordered to third reading. |
| Aug 15, 2024 | Read second time and amended. Ordered returned to second reading. |
| Aug 15, 2024 | From committee: Amend, and do pass as amended. (Ayes 5. Noes 0.) (August 15). |
| Aug 12, 2024 | In committee: Referred to APPR suspense file. |
| Aug 5, 2024 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on APPR. |
| Jul 31, 2024 | In committee: Hearing postponed by committee. |
| Jul 3, 2024 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 10. Noes 0.) (July 2). Re-referred to Com. on APPR. |
| Jun 24, 2024 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
| Jun 19, 2024 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 5. Noes 0.) (June 19). Re-referred to Com. on JUD. |
| Jun 6, 2024 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on E.Q. |
| Jun 5, 2024 | Referred to Coms. on E.Q. and JUD. |
| May 23, 2024 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 22, 2024 | Read third time. Passed. Ordered to the Senate. (Ayes 61. Noes 1. Page 5485.) |
| May 20, 2024 | Read second time. Ordered to third reading. |
| May 16, 2024 | From committee: Do pass. (Ayes 11. Noes 1.) (May 16). |
| May 1, 2024 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Apr 16, 2024 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 10. Noes 1.) (April 16). Re-referred to Com. on APPR. |
| Apr 10, 2024 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 5. Noes 0.) (April 9). Re-referred to Com. on JUD. |
| Apr 8, 2024 | Re-referred to Com. on E.S. & T.M. |
| Apr 4, 2024 | From committee chair, with author's amendments: Amend, and re-refer to Com. on E.S. & T.M. Read second time and amended. |
| Apr 2, 2024 | Re-referred to Com. on E.S. & T.M. |
| Apr 1, 2024 | From committee chair, with author's amendments: Amend, and re-refer to Com. on E.S. & T.M. Read second time and amended. |
| Mar 4, 2024 | Referred to Coms. on E.S. & T.M. and JUD. |
| Feb 14, 2024 | From printer. May be heard in committee March 15. |
| Feb 13, 2024 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 29, 2024 | AB 2515 Papan Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 28, 2024 | Assembly 3rd Reading AB2515 Papan By Skinner | Senate Floor |
Passed |
|
| Aug 15, 2024 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| Aug 12, 2024 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 2, 2024 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
|
| Jun 19, 2024 | Do pass, but first be re-referred to the Committee on [Judiciary] | Senate Standing Committee on Environmental Quality |
Passed |
|
| May 22, 2024 | AB 2515 Papan Assembly Third Reading | Assembly Floor |
Passed |
|
| May 16, 2024 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 16, 2024 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Judiciary |
Passed |
|
| Apr 9, 2024 | Do pass and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Environmental Safety and Toxic Materials |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| A Voice for Choice Advocacy | ** Support | |
| American Association Of University Women - California | ** Support | |
| American Chemistry Council | ** Against | |
| American College Of Obstetricians And Gynecologists District Ix | ** Support | |
| American Forest & Paper Association | ** Against | |
| Breast Cancer Prevention Partners | ** Support | |
| California Association Of Sanitation Agencies | ** Support | |
| California Chamber Of Commerce | ** Against | |
| California Commission on the Status of Women and Girls | * Support | Jul 2, 2024 |
| California Environmental Voters | ** Support | |
| California Health Coalition Advocacy | ** Support | |
| California Manufacturers And Technology Association | ** Against | |
| California Professional Firefighters | ** Support | |
| California Safe Schools Coalition | ** Against | |
| California Water Association | ** Support | |
| California Womens Law Center | ** Support | |
| Center for Baby and Adult Hygiene Products | ** Against | |
| Center For Environmental Health | ** Against | |
| City of Camarillo | ** Support | |
| City of Roseville | ** Support | |
| City of Santa Rosa | ** Support | |
| Civil Justice Association Of California | ** Against | |
| Clean Water Action | ** Support | |
| cleanearth4kids.org | ** Against | |
| Consumer Attorneys Of California | ** Against | |
| Consumer Brands Association | ** Against | |
| Consumer Healthcare Products Association | ** Against | |
| Educate. Advocate. | ** Support | |
| Environmental Working Group | ** Support | |
| Facts Families Advocating for Chemical and Toxics Safety | ** Against | |
| GMO Science | ** Against | |
| Irvine Ranch Water District | * Support | Jul 2, 2024 |
| Los Angeles County Sanitation Districts | ** Support | |
| Natural Resources Defense Council | ** Support | |
| NRDC | * Against Unless Amend | Jul 2, 2024 |
| Orange County Sanitation District | ** Support | |
| Pesticide Action Network | * Support | Apr 9, 2024 |
| Planned Parenthood Affiliates Of California | ** Support | |
| Reproductive Freedom for All | * Support | Apr 16, 2024 |
| Rethink Disposable | * Support | Apr 9, 2024 |
| Seventh Generation Advisors | ** Against | |
| Sierra Club California | ** Support | |
| Valley Improvement Projects | * Support | Apr 9, 2024 |
| Women's Voices for the Earth | ** Support |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 2515
Author:(Papan)
As Amended Ver:August 23, 2024
Majority vote
SUMMARY
Prohibits, as specified, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated perfluoroalkyl or polyfluoroalkyl substances (PFAS), as defined.
Senate Amendments
- Change the definition of "regulated perfluoroalkyl and polyfluoroalkyl substances" from the presence of PFAS in a product or product component at or above "10 parts per million," to "a limit determined by [the Department of Toxic Substances Control (DTSC)]," as measured in total organic fluorine.
- Require DTSC, by January 1, 2029, to adopt regulations to implement, interpret, enforce, or make specific the provisions of the bill. Delete provisions authorizing DTSC to adopt regulations to implement, interpret, or enforce the provisions of the bill.
- Require DTSC, by January 1, 2027, to publish on its internet website a list of accepted methods for testing for the presence of regulated PFAS in menstrual products and appropriate third-party accreditations for laboratories. Delete the requirement for DTSC to issue testing guidance for regulated PFAS in menstrual products.
- Require, on or before July 1, 2029, a manufacturer of a menstrual product to register with DTSC and provide to DTSC:
- The name and a description of each menstrual product;
- The applicable registration fee; and,
- A statement of compliance certifying that each menstrual product is in compliance with the provisions of this bill.
- Authorize DTSC to request, and require a manufacturer to provide upon request, technical documentation, including analytical test results, to demonstrate compliance with the provisions of this bill.
- Require DTSC to specify in regulation the manner for registering and the registration fee.
- Prohibit the registration fee from exceeding DTSC's reasonable costs of implementing the provisions of this bill.
- Require DTSC to issue a notice of violation to a person or entity in violation of the provisions of this bill if any of the following occurs:
- DTSC's testing or test results submitted as a part of the registration process indicate that a menstrual product contains regulated PFAS;
- DTSC determines that a menstrual product contains regulated PFAS after finding PFAS as an ingredient identified on the product's label; or,
- DTSC finds a violation of the provisions of this bill or any rule, regulation, standard, or requirement issued or adopted pursuant to this bill.
- Require a notice of violation to indicate the nature of the violation and authorize a notice of violation to do any of the following:
- Assess an administrative or civil penalty against a person or entity in violation of the provisions of this bill; or,
- Require compliance with the provisions of this bill, including requiring the person or entity to cease the manufacture, sale, or distribution of a menstrual product in this state.
- Authorize DTSC to receive reports of alleged violations, including analytical test results, from consumers, businesses, research institutions, persons, entities, and not-for-profit entities, and require DTSC to verify those alleged reports through its own independent testing, verification, or inspection.
- Delete provisions that would have authorized DTSC to issue a cease and desist order to the manufacturer of a menstrual product that contains regulated PFAS, if DTSC reasonably suspected that imminent harm would have resulted from the continued sale of the product.
- Delete provisions that would have authorized any person to bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of the provisions of this bill.
- Delete provisions that would have authorized exemplary damages to also be awarded in any action brought pursuant to provisions of this bill.
- Delete provisions that would have authorized a civil penalty not to exceed $5,000 per day for violation of the provisions of this bill, and a civil penalty not to exceed $10,000 per day for a second and subsequent violation of the provisions of this bill.
- Provide, instead, that a violation of the provisions of this bill is punishable by a civil and administrative penalty.
- Require DTSC to determine, on a case-by-case basis, the enforcement mechanism and the amount of any administrative or civil penalty assessed pursuant to this bill. Require that the minimum amount of an administrative or civil penalty assessed be $10,000 for the first and any subsequent violation. Authorize penalties to be assessed for each violation of a separate provision or, for continuing violations, for each day that the violation continues.
- Authorize the court, in assessing the amount of a civil penalty for a violation of provisions of this bill, to consider all of the following:
- The nature and extent of the violation;
- The number and severity of the violations;
- The economic effect of the penalty on the violator;
- Whether the violator took good faith measures to comply with the provisions of this bill and when the measures were taken;
- The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole; and,
- Whether there were contributing environmental factors about which a reasonable person knew or should have known.
- Authorize the Attorney General, on behalf of DTSC, to bring an action in superior court and provide the court with jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person or entity from violating any provision of this bill.
- Require that a proceeding under the provisions of this bill conform to the requirements of specified sections of the Code of Civil Procedure, with an exemption for DTSC from being required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
- Delete provisions that would have authorized actions to be brought pursuant to this bill by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
- Delete provisions that would have required that moneys deposited in the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act Fund, which is created by the bill, be available, upon appropriation by the Legislature, for expenditure by DTSC exclusively for carrying out the duties and responsibilities under this bill.
- Provide that DTSC's duties to initiate, implement, or enforce any requirement of this bill are contingent upon sufficient funds in the Toxic Substances Control Account (TSCA), as determined by the Department of Finance, and an appropriation by the Legislature.
- Authorize, upon appropriation by the Legislature as specified, if funds in the TSCA are sufficient to finance the development of the regulations and DTSC's startup costs pursuant to this bill, funds to be used as a loan until the T.A.M.P.O.N. Act Fund generates revenues sufficient to fund DTSC's reasonable costs of implementing the provisions of this bill and to reimburse any outstanding loans made from TSCA.
- Make other technical and conforming changes.
COMMENTS
Perfluoroalkyl and polyfluoroalkyl substances (PFAS): PFAS are synthetic, highly fluorinated substances that have been widely used in industrial and consumer applications for their heat, water, and lipid resistance properties for more than seven decades. During production, use, and disposal, PFAS can migrate into the soil, water, and air. Some PFAS are volatile, and can be carried long distances through the air, leading to contamination of soil and groundwater far from the emission source. Researchers have found PFAS in indoor and outdoor environments, plants, soil, food, drinking water, wildlife, companion animals, production animals, and humans at locations across the nation and around the globe. PFAS are extremely persistent and degrade very slowly over time, which has resulted in their accumulation in the environment since the onset of their production in the late 1940s and their classification as "forever chemicals." Currently, nearly 15,000 PFAS chemicals are included in the chemicals database CompTox, which is maintained by the United States Environmental Protection Agency (US EPA).
The main route of exposure to PFAS is through ingestion of contaminated food or liquid (accounting for up to half of total exposure), through contact with consumer products, and through inhalation and ingestion of contaminated indoor air and dust.
Hazard traits of PFAS: According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations. Current peer-reviewed scientific studies have shown that exposure to certain levels of PFAS may lead to: reproductive effects such as decreased fertility or increased high blood pressure in pregnant women; developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations, or behavioral changes; increased risk of some cancers, including prostate, kidney, and testicular cancers; reduced ability of the body's immune system to fight infections, including reduced vaccine response; interference with the body's natural hormones; and, increased cholesterol levels and/or risk of obesity. In addition to direct human health impacts, some PFAS may have high global warming potential. Also, several PFAS bioaccumulate significantly in animals or plants, and emerging evidence points to their phytotoxicity, aquatic toxicity, and terrestrial ecotoxicity.
PFAS in menstrual products: People who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. To illustrate the prevalence of PFAS in menstrual products, the author of the bill points to tests on menstrual products commissioned by the consumer watchdog site, Mamavation, and Environmental Health News. Conducted at US EPA-certified laboratories between 2020 and 2022, the tests detected organic fluorine, a marker for PFAS, in several menstrual products. For example, 22% of the 23 tampon products tested had indications of PFAS, including 2 products advertised as "organic;" 48% of 46 different sanitary pads, panty liners, and incontinence pads tested had indications of PFAS, including several products marketed as "organic" and "natural;" and, 65% of period underwear products tested, and 57% of the period underwear brands tested, had detectable levels of fluorine present.
Exposure to PFAS through menstrual products is particularly concerning because the vagina is extremely vascular and dermal exposure in the vaginal area is often higher than other places of the body. Additionally, people using menstrual products are of reproductive age, thus exposure could potentially impact unborn children, as well as the person using the product. Experts are particularly concerned about the effects of PFAS during sensitive developmental or reproductive phases, such as menstruation onset, pregnancy, or menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
This bill: This bill prohibits, as specified, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated PFAS.
According to the Author
"These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAs in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
AB 2515 takes a critical step towards protecting women's health and reducing the amount of PFAS in the environment by eliminating [PFAS] from menstrual products. California's pursuit of gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean, and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women's health must be prioritized over the use of these unnecessary chemicals. It's past time to protect women and our environment."
Arguments in Support
The City of Glendale writes, "PFAS have been linked by scientific, peer-reviewed research to severe health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. For these reasons, California has moved to eliminate PFAS class chemicals from clothes, children's toys, cookware, and food packaging. However, menstrual products remain unregulated. Research has linked high rates of PFAS exposure, through mensural products, to a variety of health conditions including accelerated ovarian aging, period irregularities and ovarian disorders like polycystic ovarian syndrome. For those who use menstrual products, exposure to PFAS is almost unavoidable. AB 2515 takes a critical step towards protecting the health of Californians and reducing the amount of PFAS in our environment by eliminating them from menstrual products."
The California Water Association writes, "California Water Association (CWA) is pleased to support AB 2515 regarding PFAS in menstrual products. CWA represents 89 drinking water utilities that are regulated by the California Public Utilities Commission (CPUC). Our members provide safe, reliable, high-quality water service to 15% of the State, approximately 6 million Californians… US EPA has determined that exposure to PFAS/PFOS can lead to adverse human health effects. CWA's members are actively working to remove PFAS in the drinking water of communities throughout California. This bill will eliminate PFAS containing products, thereby reducing the opportunity for drinking water and ground water contamination."
Arguments in Opposition
A coalition of opponents, including manufacturers and other industry organizations, writes, "Our manufacturers do not intentionally add PFAS to serve any functional or technical effect in menstrual products... Given menstrual products are an essential product for women's health, our coalition is supportive of the policy direction in AB 2515... Unfortunately, AB 2515 creates a framework that punishes manufacturers that are NOT intentionally adding PFAS to menstrual products. The challenge of unintentional PFAS contamination is that it may exist beyond what a manufacturer can control... As a result, contamination can occur at any point during the product's life cycle – at the point of manufacturing and packaging, shipping and receiving, even the handling or use of the product by a consumer... Any enforcement must take into consideration the pervasiveness of PFAS and that manufacturers are not intentionally adding the chemical to these products. Enforcement should not act as a mechanism that limits product availability or drives consumer uncertainty as to product safety, but instead be justly focused on any bad actors who are intentionally adding PFAS chemicals to their respective products… To this end, the reason AB 2515 has presented such a challenge for our coalition is because it requires the Legislature to determine how to impose a reasonable liability and enforcement structure on entities that are not adding the chemical in question into their products. Indeed, this is a novel challenge, as AB 2515 is the first bill in the country—and perhaps the world—seeking to enforce on entities that are not adding the chemical in question in their products and that can do very little, if anything, to avoid its presence."
FISCAL COMMENTS
According to the Senate Appropriations Committee, enactment of a previous version of this bill could result in ongoing costs of $2 to $3 million annually for DTSC for 6-10 positions to develop regulations and guidance in order to implement the compliance and enforcement activities required by this bill. Based on current assumptions, the Environmental Fee would need to be increased by roughly 2%, spread equally across each fee tier, to generate sufficient revenues to support the increase in expenditures. Additionally, to the extent civil penalties created by this bill are collected, it could create potential revenue impacts of an unknown amount.
VOTES:
ASM ENVIRONMENTAL SAFETY AND TOXIC MATERIALS: 5-0-2
YES: Garcia, Connolly, McKinnor, Papan, Reyes
ABS, ABST OR NV: Hoover, Ta
ASM JUDICIARY: 10-1-1
YES: Kalra, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Waldron
NO: Dixon
ABS, ABST OR NV: Sanchez
ASM APPROPRIATIONS: 11-1-3
YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua
NO: Dixon
ABS, ABST OR NV: Sanchez, Jim Patterson, Ta
ASSEMBLY FLOOR: 61-1-18
YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Davies, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO: Dixon
ABS, ABST OR NV: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Flora, Vince Fong, Friedman, Gallagher, Holden, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Luz Rivas, Sanchez, Ta
SENATE FLOOR: 33-0-7
YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ABS, ABST OR NV: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Seyarto
UPDATED
VERSION: August 23, 2024
CONSULTANT: Shannon McKinney / E.S. & T.M. / (916) 319-2965 FN: 0004933
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 2515
Author:(Papan)
As Amended Ver:August 23, 2024
Majority vote
SUMMARY
Prohibits, as specified, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated perfluoroalkyl or polyfluoroalkyl substances (PFAS), as defined.
Senate Amendments
- Change the definition of "regulated perfluoroalkyl and polyfluoroalkyl substances" from the presence of PFAS in a product or product component at or above "10 parts per million," to "a limit determined by [the Department of Toxic Substances Control (DTSC)]," as measured in total organic fluorine.
- Require DTSC, by January 1, 2029, to adopt regulations to implement, interpret, enforce, or make specific the provisions of the bill. Delete provisions authorizing DTSC to adopt regulations to implement, interpret, or enforce the provisions of the bill.
- Require DTSC, by January 1, 2027, to publish on its internet website a list of accepted methods for testing for the presence of regulated PFAS in menstrual products and appropriate third-party accreditations for laboratories. Delete the requirement for DTSC to issue testing guidance for regulated PFAS in menstrual products.
- Require, on or before July 1, 2029, a manufacturer of a menstrual product to register with DTSC and provide to DTSC:
- The name and a description of each menstrual product;
- The applicable registration fee; and,
- A statement of compliance certifying that each menstrual product is in compliance with the provisions of this bill.
- Authorize DTSC to request, and require a manufacturer to provide upon request, technical documentation, including analytical test results, to demonstrate compliance with the provisions of this bill.
- Require DTSC to specify in regulation the manner for registering and the registration fee.
- Prohibit the registration fee from exceeding DTSC's reasonable costs of implementing the provisions of this bill.
- Require DTSC to issue a notice of violation to a person or entity in violation of the provisions of this bill if any of the following occurs:
- DTSC's testing or test results submitted as a part of the registration process indicate that a menstrual product contains regulated PFAS;
- DTSC determines that a menstrual product contains regulated PFAS after finding PFAS as an ingredient identified on the product's label; or,
- DTSC finds a violation of the provisions of this bill or any rule, regulation, standard, or requirement issued or adopted pursuant to this bill.
- Require a notice of violation to indicate the nature of the violation and authorize a notice of violation to do any of the following:
- Assess an administrative or civil penalty against a person or entity in violation of the provisions of this bill; or,
- Require compliance with the provisions of this bill, including requiring the person or entity to cease the manufacture, sale, or distribution of a menstrual product in this state.
- Authorize DTSC to receive reports of alleged violations, including analytical test results, from consumers, businesses, research institutions, persons, entities, and not-for-profit entities, and require DTSC to verify those alleged reports through its own independent testing, verification, or inspection.
- Delete provisions that would have authorized DTSC to issue a cease and desist order to the manufacturer of a menstrual product that contains regulated PFAS, if DTSC reasonably suspected that imminent harm would have resulted from the continued sale of the product.
- Delete provisions that would have authorized any person to bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of the provisions of this bill.
- Delete provisions that would have authorized exemplary damages to also be awarded in any action brought pursuant to provisions of this bill.
- Delete provisions that would have authorized a civil penalty not to exceed $5,000 per day for violation of the provisions of this bill, and a civil penalty not to exceed $10,000 per day for a second and subsequent violation of the provisions of this bill.
- Provide, instead, that a violation of the provisions of this bill is punishable by a civil and administrative penalty.
- Require DTSC to determine, on a case-by-case basis, the enforcement mechanism and the amount of any administrative or civil penalty assessed pursuant to this bill. Require that the minimum amount of an administrative or civil penalty assessed be $10,000 for the first and any subsequent violation. Authorize penalties to be assessed for each violation of a separate provision or, for continuing violations, for each day that the violation continues.
- Authorize the court, in assessing the amount of a civil penalty for a violation of provisions of this bill, to consider all of the following:
- The nature and extent of the violation;
- The number and severity of the violations;
- The economic effect of the penalty on the violator;
- Whether the violator took good faith measures to comply with the provisions of this bill and when the measures were taken;
- The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole; and,
- Whether there were contributing environmental factors about which a reasonable person knew or should have known.
- Authorize the Attorney General, on behalf of DTSC, to bring an action in superior court and provide the court with jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person or entity from violating any provision of this bill.
- Require that a proceeding under the provisions of this bill conform to the requirements of specified sections of the Code of Civil Procedure, with an exemption for DTSC from being required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
- Delete provisions that would have authorized actions to be brought pursuant to this bill by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
- Delete provisions that would have required that moneys deposited in the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act Fund, which is created by the bill, be available, upon appropriation by the Legislature, for expenditure by DTSC exclusively for carrying out the duties and responsibilities under this bill.
- Provide that DTSC's duties to initiate, implement, or enforce any requirement of this bill are contingent upon sufficient funds in the Toxic Substances Control Account (TSCA), as determined by the Department of Finance, and an appropriation by the Legislature.
- Authorize, upon appropriation by the Legislature as specified, if funds in the TSCA are sufficient to finance the development of the regulations and DTSC's startup costs pursuant to this bill, funds to be used as a loan until the T.A.M.P.O.N. Act Fund generates revenues sufficient to fund DTSC's reasonable costs of implementing the provisions of this bill and to reimburse any outstanding loans made from TSCA.
- Make other technical and conforming changes.
COMMENTS
Perfluoroalkyl and polyfluoroalkyl substances (PFAS): PFAS are synthetic, highly fluorinated substances that have been widely used in industrial and consumer applications for their heat, water, and lipid resistance properties for more than seven decades. During production, use, and disposal, PFAS can migrate into the soil, water, and air. Some PFAS are volatile, and can be carried long distances through the air, leading to contamination of soil and groundwater far from the emission source. Researchers have found PFAS in indoor and outdoor environments, plants, soil, food, drinking water, wildlife, companion animals, production animals, and humans at locations across the nation and around the globe. PFAS are extremely persistent and degrade very slowly over time, which has resulted in their accumulation in the environment since the onset of their production in the late 1940s and their classification as "forever chemicals." Currently, nearly 15,000 PFAS chemicals are included in the chemicals database CompTox, which is maintained by the United States Environmental Protection Agency (US EPA).
The main route of exposure to PFAS is through ingestion of contaminated food or liquid (accounting for up to half of total exposure), through contact with consumer products, and through inhalation and ingestion of contaminated indoor air and dust.
Hazard traits of PFAS: According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations. Current peer-reviewed scientific studies have shown that exposure to certain levels of PFAS may lead to: reproductive effects such as decreased fertility or increased high blood pressure in pregnant women; developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations, or behavioral changes; increased risk of some cancers, including prostate, kidney, and testicular cancers; reduced ability of the body's immune system to fight infections, including reduced vaccine response; interference with the body's natural hormones; and, increased cholesterol levels and/or risk of obesity. In addition to direct human health impacts, some PFAS may have high global warming potential. Also, several PFAS bioaccumulate significantly in animals or plants, and emerging evidence points to their phytotoxicity, aquatic toxicity, and terrestrial ecotoxicity.
PFAS in menstrual products: People who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. To illustrate the prevalence of PFAS in menstrual products, the author of the bill points to tests on menstrual products commissioned by the consumer watchdog site, Mamavation, and Environmental Health News. Conducted at US EPA-certified laboratories between 2020 and 2022, the tests detected organic fluorine, a marker for PFAS, in several menstrual products. For example, 22% of the 23 tampon products tested had indications of PFAS, including 2 products advertised as "organic;" 48% of 46 different sanitary pads, panty liners, and incontinence pads tested had indications of PFAS, including several products marketed as "organic" and "natural;" and, 65% of period underwear products tested, and 57% of the period underwear brands tested, had detectable levels of fluorine present.
Exposure to PFAS through menstrual products is particularly concerning because the vagina is extremely vascular and dermal exposure in the vaginal area is often higher than other places of the body. Additionally, people using menstrual products are of reproductive age, thus exposure could potentially impact unborn children, as well as the person using the product. Experts are particularly concerned about the effects of PFAS during sensitive developmental or reproductive phases, such as menstruation onset, pregnancy, or menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
This bill: This bill prohibits, as specified, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated PFAS.
According to the Author
"These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAs in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
AB 2515 takes a critical step towards protecting women's health and reducing the amount of PFAS in the environment by eliminating [PFAS] from menstrual products. California's pursuit of gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean, and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women's health must be prioritized over the use of these unnecessary chemicals. It's past time to protect women and our environment."
Arguments in Support
The City of Glendale writes, "PFAS have been linked by scientific, peer-reviewed research to severe health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. For these reasons, California has moved to eliminate PFAS class chemicals from clothes, children's toys, cookware, and food packaging. However, menstrual products remain unregulated. Research has linked high rates of PFAS exposure, through mensural products, to a variety of health conditions including accelerated ovarian aging, period irregularities and ovarian disorders like polycystic ovarian syndrome. For those who use menstrual products, exposure to PFAS is almost unavoidable. AB 2515 takes a critical step towards protecting the health of Californians and reducing the amount of PFAS in our environment by eliminating them from menstrual products."
The California Water Association writes, "California Water Association (CWA) is pleased to support AB 2515 regarding PFAS in menstrual products. CWA represents 89 drinking water utilities that are regulated by the California Public Utilities Commission (CPUC). Our members provide safe, reliable, high-quality water service to 15% of the State, approximately 6 million Californians… US EPA has determined that exposure to PFAS/PFOS can lead to adverse human health effects. CWA's members are actively working to remove PFAS in the drinking water of communities throughout California. This bill will eliminate PFAS containing products, thereby reducing the opportunity for drinking water and ground water contamination."
Arguments in Opposition
A coalition of opponents, including manufacturers and other industry organizations, writes, "Our manufacturers do not intentionally add PFAS to serve any functional or technical effect in menstrual products... Given menstrual products are an essential product for women's health, our coalition is supportive of the policy direction in AB 2515... Unfortunately, AB 2515 creates a framework that punishes manufacturers that are NOT intentionally adding PFAS to menstrual products. The challenge of unintentional PFAS contamination is that it may exist beyond what a manufacturer can control... As a result, contamination can occur at any point during the product's life cycle – at the point of manufacturing and packaging, shipping and receiving, even the handling or use of the product by a consumer... Any enforcement must take into consideration the pervasiveness of PFAS and that manufacturers are not intentionally adding the chemical to these products. Enforcement should not act as a mechanism that limits product availability or drives consumer uncertainty as to product safety, but instead be justly focused on any bad actors who are intentionally adding PFAS chemicals to their respective products… To this end, the reason AB 2515 has presented such a challenge for our coalition is because it requires the Legislature to determine how to impose a reasonable liability and enforcement structure on entities that are not adding the chemical in question into their products. Indeed, this is a novel challenge, as AB 2515 is the first bill in the country—and perhaps the world—seeking to enforce on entities that are not adding the chemical in question in their products and that can do very little, if anything, to avoid its presence."
FISCAL COMMENTS
According to the Senate Appropriations Committee, enactment of a previous version of this bill could result in ongoing costs of $2 to $3 million annually for DTSC for 6-10 positions to develop regulations and guidance in order to implement the compliance and enforcement activities required by this bill. Based on current assumptions, the Environmental Fee would need to be increased by roughly 2%, spread equally across each fee tier, to generate sufficient revenues to support the increase in expenditures. Additionally, to the extent civil penalties created by this bill are collected, it could create potential revenue impacts of an unknown amount.
VOTES:
ASM ENVIRONMENTAL SAFETY AND TOXIC MATERIALS: 5-0-2
YES: Garcia, Connolly, McKinnor, Papan, Reyes
ABS, ABST OR NV: Hoover, Ta
ASM JUDICIARY: 10-1-1
YES: Kalra, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Waldron
NO: Dixon
ABS, ABST OR NV: Sanchez
ASM APPROPRIATIONS: 11-1-3
YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua
NO: Dixon
ABS, ABST OR NV: Sanchez, Jim Patterson, Ta
ASSEMBLY FLOOR: 61-1-18
YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Davies, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO: Dixon
ABS, ABST OR NV: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Flora, Vince Fong, Friedman, Gallagher, Holden, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Luz Rivas, Sanchez, Ta
UPDATED
VERSION: August 23, 2024
CONSULTANT: Shannon McKinney / E.S. & T.M. / (916) 319-2965 FN: 0004933
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2515 |
THIRD READING
Bill No: AB 2515
Author: Papan (D)
Amended: 8/23/24 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-0, 6/19/24
AYES: Allen, Gonzalez, Hurtado, Menjivar, Skinner
NO VOTE RECORDED: Dahle, Nguyen
SENATE JUDICIARY COMMITTEE: 10-0, 7/2/24
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Roth, Stern, Wahab
NO VOTE RECORDED: Niello
SENATE APPROPRIATIONS COMMITTEE: 5-0, 8/15/24
AYES: Caballero, Ashby, Becker, Bradford, Wahab
NO VOTE RECORDED: Jones, Seyarto
ASSEMBLY FLOOR: 61-1, 5/22/24 - See last page for vote
SUBJECT: Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
SOURCE: Author
DIGEST:
This bill prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated per- or poly-fluoroalkyl substance (PFAS) as defined.
Senate Floor Amendments of 8/23/24 provide details about the enforcement and compliance process, including specifying requirements on the Department of Toxic Substances Control (DTSC) and manufacturers of menstrual products. Provide details about the funding mechanism for the provisions in the bill. Removes the “right to cure” provision previously included in the bill.
ANALYSIS:
Existing law:
- Under the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) (Health and Safety Code (HSC) § 25249.5 et seq.):
- Prohibits a person, in the course of doing business, from knowingly discharging or releasing a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water.
- Prohibits a person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.
- Requires the Governor to publish a list of chemicals known to cause cancer or reproductive toxicity and to annually revise the list. The Office of Environmental Health Hazard Assessment (OEHHA) has listed perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which are members of the PFAS class, as chemicals known to the state to cause developmental toxicity and cancer.
- Under the Safer Consumer Products (Green Chemistry) statutes (HSC § 25252 et seq.):
- Requires the Department of Toxic Substances Control (DTSC) to adopt regulations to establish a process to identify and prioritize chemicals or chemical ingredients in consumer products that may be considered chemicals of concern, as specified.
- Requires DTSC to adopt regulations to establish a process to evaluate chemicals of concern in consumer products, and their potential alternatives, to determine how to best limit exposure or to reduce the level of hazard posed by a chemical of concern.
- Specifies, but does not limit, regulatory responses that DTSC can take following the completion of an alternatives analysis, ranging from no action to a prohibition of the chemical in the product.
- The Menstrual Products Right to Know Act of 2020, requires a package containing menstrual products manufactured on or after January 1, 2023, for sale or distribution in the state to be labeled with all ingredients in the product by weight and this information to be posted on the internet.
This bill:
- Prohibits, commencing January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains intentionally added PFAS.
- Prohibits, commencing January 1, 2027, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that has a total organic fluorine content at or above a limit determined by DTSC.
- Requires DTSC, on or before January 1, 2027, to publish a list of acceptable PFAS testing methods on their website.
- Requires DTSC, on or before January 1, 2029, to adopt regulations or guidance as necessary to implement, administer, and enforce the prohibition, including requiring DTSC to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
- Requires manufacturers of menstrual products, on or before July 1, 2029, to register with the department and provide:
- The name and description of each covered product; and
- A registration fee; and
- A statement of compliance certifying that each covered product is in compliance with the applicable PFAS restriction.
- Authorizes DTSC to compel manufacturers to submit testing data to prove compliance with the PFAS restriction.
- Authorizes DTSC to issue a notice of violation if any of the following occur:
- DTSC’s testing or test results submitted as a part of the registration process indicates that a menstrual product contains regulated PFAS; or
- The department determines a violation if a menstrual product contains regulated PFAS after finding it as an ingredient on the product’s label; or
- The department finds a violation of the prohibition in the bill, or any rule, regulation, standard or requirement issued pursuant to this bill.
- Establishes the T.A.M.P.O.N. Act Fund, into which penalties collected pursuant to the bill will be collected.
- Specifies that the department’s duties to initiate, implement, or enforce the provisions of the bill are contingent on sufficient funds in the Toxic Substances Control Account (TSCA), as determined by the Department of Finance, and upon an appropriation by the Legislature.
- Authorizes DTSC to utilize the funds in TSCA as a loan to develop the regulations and startup costs of the provisions of the bill until the T.A.M.P.O.N. Act Fund generates sufficient revenue to fund the department’s reasonable costs.
Background
- Perfluoroalkyl and polyfluoroalkyl substances (PFAS). Per- and poly-fluoroalkyl substances (PFAS) are a large group (nearly 15,000 according to the U. S. Environmental Protection Agency (U. S. EPA)) of synthetic substances that have been widely used in industrial and consumer applications for their heat, water, and oil resistance properties for over seven decades. As a result, PFAS are used extensively in a variety of products designed to be waterproof; grease, heat, stain resistant; or non-stick. Commercial applications span many sectors of the economy, including aerospace, apparel, automotive, building and construction, pharmaceuticals, medical devices, paints, electronics, semiconductors, energy, oil and gas exploration, first responder safety, firefighting foams, and health care.
Due to the strength and stability of the carbon-fluorine bond, PFAS are long-lasting chemicals that are exceedingly difficult to destroy, making them highly persistent in the environment and resulting in their classification as “forever chemicals.” PFAS can migrate into the soil, water, and air at all stages of their lifecycle, from production, to use, to disposal; many scientists argue that PFAS should be regulated as a class (rather than based only on use-phase risk) because of these life cycle impacts. Because of their ubiquity and persistence in the environment, many PFAS are found in indoor and outdoor environments, plants, soil, food, drinking water, wildlife, companion animals, production animals, and humans at locations across the nation and around the globe.
- Risks of PFAS. Simply defined, risk is a function of hazard and exposure. With the high chance for exposure and substantial hazard traits, PFAS pose high risks to human, environmental, and animal health. PFAS exposure occurs mainly through ingestion of contaminated food or liquids. Exposure can also occur through inhalation of indoor air or contact with contaminated media. PFAS can be transferred from mother to child during pregnancy and breastfeeding. PFAS remains in the body for a long time, so as people continue to be exposed to PFAS, the PFAS levels in their bodies may accumulate. According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations. DTSC also contends that exposure to PFAS can lead to adverse health outcomes in humans.
- PFAS in menstrual products. People who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. In menstrual products, PFAS can help make the material more absorbent and more stain-resistant. PFAS can be found in the raw materials used during a variety of steps throughout the manufacturing process.
Exposure to PFAS through menstrual products is particularly concerning because the vagina is an extremely vascular area and dermal exposure in the vaginal area is often higher than in other places of the body. Additionally, people using menstrual products are of reproductive age, and because PFAS are endocrine-disrupting chemicals, evidence has suggested that overall PFAS exposure could potentially impact unborn children, as well as the person using the product. Some scientists are concerned about the effects of PFAS during phases when the body is especially vulnerable, such as when someone gets their first period, is pregnant, or is in menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
Comments
- Purpose of Bill. According to the author, “These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAs in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
“AB 2515 takes a critical step towards protecting women’s health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California’s pursuit of gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean, and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women’s health must be prioritized over the use of these unnecessary chemicals. It’s past time to protect women and our environment.”
- PFAS concentration thresholds. This bill prohibits intentionally added PFAS by January 1, 2025, and authorizes DTSC to set a limit for regulating any PFAS in a product by January 1, 2027. Such a threshold may be warranted because determining whether PFAS were intentionally added in the manufacturing of a product can be a challenge when taking enforcement action. Furthermore, the health impacts from exposure to PFAS are the same, whether it was intentionally added or not. The author argues that manufacturers should be responsible for monitoring the entirety of the production line to ensure these products do not contain PFAS and take corrective action if it turns out they do.
Setting a concentration threshold can protect public health. There is no concentration of PFAS that has been proven safe, and as long-lasting chemicals, they build up in the human body and the environment over time. PFAS in different types of products may be of greater concern than others depending on how likely the chemicals are to enter the body. A menstrual product containing PFAS likely poses a more acute health risk than, for example, a jacket containing PFAS. This bill authorizes DTSC, an agency with scientific expertise in evaluating hazardous chemicals, to establish a limit for regulated PFAS in menstrual products, intentionally added or not.
- Have we seen this before? AB 246 (Papan, 2023) was substantially similar to this bill. Ultimately, the bill was vetoed, with the governor writing, “Previously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions.” Unlike AB 246, which did not have an overseeing agency, this bill grants DTSC oversight, requires the department to publish guidance as it relates to testing for PFAS in menstrual products, and requires them to adopt regulations or guidance as necessary to implement, administer, or enforce the prohibition, including setting a limit for PFAS in menstrual products.
- Consistency between related legislation. This bill’s enforcement and compliance procedure mirrors that of AB 347 (Ting), a bill to provide departmental enforcement on existing PFAS product bans that is currently pending on the Senate Floor. This bill contains a number of details for a registration, notice of violation, enforcement, and funding processes:
- Registration and testing. On or before January 1, 2027, the same date that the department will determine a threshold for all PFAS in menstrual products, DTSC is required to publish a list of accepted testing methods. On or before July 1, 2029, manufacturers of covered products are required to register with DTSC and provide the following to the department: 1) name and description of each covered product; 2) registration fee; and 3) A statement of compliance certifying that each covered product is in compliance with the applicable PFAS restriction. The bill authorizes DTSC to compel manufacturers to submit testing data to prove compliance. It is important to note that the registration process outlined in AB 2515 reverses the onus of proof onto manufacturers to produce information about their compliance, rather than DTSC, which will simply review the information.
- Notice of violation. DTSC is required to issue a notice of violation in one of three instances: 1) DTSC’s testing or the testing submitted as a part of the registration process indicates a covered product violates a restriction; 2) A menstrual product contains PFAS as an ingredient identified on a product label; or 3) the department finds a violation pursuant to any regulation, standard, or requirement issued or adopted pursuant to this bill. The notice of violation may assess an administrative penalty and require compliance with the covered PFAS restriction, including requiring the entity to cease the sale or distribution of the product. The department may also receive reports of violations and rely on testing provided by a consumer, business, research institution, or non-profits, but DTSC must independently verify reports or testing data alleging noncompliance.
- Enforcement. A violation of the PFAS prohibition in this bill is punishable by a civil and administrative penalty. The bill specifies a number of different considerations a court may consider upon issuing a civil penalty. The Attorney General is authorized to take action, by request of the department.
- Funding. The bill creates the T.A.M.P.O.N. Act Fund, into which any moneys from penalties collected will be deposited. The bill specifies that the department’s duties to initiate, implement, or enforce the provisions of the bill are contingent on sufficient funds in the Toxic Substances Control Account (TSCA), as determined by the Department of Finance, and upon an appropriation by the Legislature. The bill authorizes DTSC to utilize the funds in TSCA as a loan to develop the regulations and startup costs of the provisions of the bill until the T.A.M.P.O.N. Act Fund generates sufficient revenue to fund the department’s reasonable costs.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee:
- Ongoing costs of about $2 to $3 million annually (Toxic Substance Control Account [TSCA]) to the Department of Toxic Substances Control (DTSC) for 6-10 positions to develop regulations and guidance in order to implement the compliance and enforcement activities required by this bill. TSCA is supported by the Environmental Fee. According to DTSC, based on current assumptions, the Environmental Fee would need to be increased by roughly 2%, spread equally across each fee tier, to generate sufficient revenues to support the increase in expenditures.
- To the extent civil penalties created by this bill are collected, potential revenue impacts of an unknown amount (T.A.M.P.O.N. Act Fund). While this bill would make any penalty revenue deposited into the T.A.M.P.O.N. Act Fund available to DTSC, the department notes penalty revenue is generally insufficient to cover its costs.
SUPPORT: (Verified 8/27/24)
A Voice for Choice Advocacy
American Association of University Women - California
American College of Obstetricians and Gynecologists District Ix
Breast Cancer Prevention Partners
California Association of Sanitation Agencies
California Health Coalition Advocacy
California Professional Firefighters
California Water Association
City of Camarillo
City of Roseville
City of Santa Rosa
Clean Water Action
Educate. Advocate.
Environmental Working Group
Los Angeles County Sanitation Districts
Natural Resources Defense Council
Planned Parenthood Affiliates of California
Sierra Club California
Women's Voices for The Earth
OPPOSITION: (Verified 8/27/24)
American Chemistry Council
American Forest & Paper Association
California Chamber of Commerce
California Manufacturers and Technology Association
California Safe Schools Coalition
Center for Baby and Adult Hygiene Products
Center for Environmental Health
Civil Justice Association of California
Cleanearth4kids.org
Consumer Attorneys of California
Consumer Brands Association
Consumer Healthcare Products Association
Facts Families Advocating for Chemical and Toxics Safety
Gmo Science
Seventh Generation Advisors
ARGUMENTS IN SUPPORT: According to the California Association of Sanitation Agencies, “This is an important source control strategy for reducing PFAS contamination in wastewater systems and California’s watersheds. Feminine hygiene products that contain PFAS have a direct pathway to wastewater when disposable products are erroneously flushed, or when reusable products are washed in household laundry systems. CASA is a statewide trade association representing a variety of public agencies that provide essential public services to millions of Californians, including wastewater collection, treatment, and disposal, as well as water recycling, biosolids management, and renewable energy deployment.”
ARGUMENTS IN OPPOSITION: According to a coalition of manufacturers, Manufacturers fully intend to comply with these prohibitions on intentionally added PFAS and understand the need for practical regulation in this space, however, unavoidable trace quantities of a chemical may be present and beyond the manufacturer’s control. Any enforcement must take into consideration the pervasiveness of PFAS and that manufacturers are not intentionally adding the chemical to these products. Enforcement should not act as a mechanism that limits product availability or drives consumer uncertainty as to product safety, but instead be justly focused on any bad actors who are intentionally adding PFAS chemicals to their respective products.
ASSEMBLY FLOOR: 61-1, 5/22/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Davies, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NOES: Dixon
NO VOTE RECORDED: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Flora, Vince Fong, Friedman, Gallagher, Holden, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Luz Rivas, Sanchez, Ta
Prepared by: Holly Rudel / E.Q. / (916) 651-4108
8/27/24 20:25:28
**** END ****
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2515 |
THIRD READING
Bill No: AB 2515
Author: Papan (D)
Amended: 8/23/24 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-0, 6/19/24
AYES: Allen, Gonzalez, Hurtado, Menjivar, Skinner
NO VOTE RECORDED: Dahle, Nguyen
SENATE JUDICIARY COMMITTEE: 10-0, 7/2/24
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Roth, Stern, Wahab
NO VOTE RECORDED: Niello
SENATE APPROPRIATIONS COMMITTEE: 5-0, 8/15/24
AYES: Caballero, Ashby, Becker, Bradford, Wahab
NO VOTE RECORDED: Jones, Seyarto
ASSEMBLY FLOOR: 61-1, 5/22/24 - See last page for vote
SUBJECT: Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
SOURCE: Author
DIGEST:
This bill prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated per- or poly-fluoroalkyl substance (PFAS) as defined.
Senate Floor Amendments of 8/23/24 provide details about the enforcement and compliance process, including specifying requirements on the Department of Toxic Substances Control (DTSC) and manufacturers of menstrual products. Provide details about the funding mechanism for the provisions in the bill. Removes the “right to cure” provision previously included in the bill.
ANALYSIS:
Existing law:
- Under the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) (Health and Safety Code (HSC) § 25249.5 et seq.):
- Prohibits a person, in the course of doing business, from knowingly discharging or releasing a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water.
- Prohibits a person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.
- Requires the Governor to publish a list of chemicals known to cause cancer or reproductive toxicity and to annually revise the list. The Office of Environmental Health Hazard Assessment (OEHHA) has listed perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which are members of the PFAS class, as chemicals known to the state to cause developmental toxicity and cancer.
- Under the Safer Consumer Products (Green Chemistry) statutes (HSC § 25252 et seq.):
- Requires the Department of Toxic Substances Control (DTSC) to adopt regulations to establish a process to identify and prioritize chemicals or chemical ingredients in consumer products that may be considered chemicals of concern, as specified.
- Requires DTSC to adopt regulations to establish a process to evaluate chemicals of concern in consumer products, and their potential alternatives, to determine how to best limit exposure or to reduce the level of hazard posed by a chemical of concern.
- Specifies, but does not limit, regulatory responses that DTSC can take following the completion of an alternatives analysis, ranging from no action to a prohibition of the chemical in the product.
- The Menstrual Products Right to Know Act of 2020, requires a package containing menstrual products manufactured on or after January 1, 2023, for sale or distribution in the state to be labeled with all ingredients in the product by weight and this information to be posted on the internet.
This bill:
- Prohibits, commencing January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains intentionally added PFAS.
- Prohibits, commencing January 1, 2027, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that has a total organic fluorine content at or above a limit determined by DTSC.
- Requires DTSC, on or before January 1, 2027, to publish a list of acceptable PFAS testing methods on their website.
- Requires DTSC, on or before January 1, 2029, to adopt regulations or guidance as necessary to implement, administer, and enforce the prohibition, including requiring DTSC to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
- Requires manufacturers of menstrual products, on or before July 1, 2029, to register with the department and provide:
- The name and description of each covered product; and
- A registration fee; and
- A statement of compliance certifying that each covered product is in compliance with the applicable PFAS restriction.
- Authorizes DTSC to compel manufacturers to submit testing data to prove compliance with the PFAS restriction.
- Authorizes DTSC to issue a notice of violation if any of the following occur:
- DTSC’s testing or test results submitted as a part of the registration process indicates that a menstrual product contains regulated PFAS; or
- The department determines a violation if a menstrual product contains regulated PFAS after finding it as an ingredient on the product’s label; or
- The department finds a violation of the prohibition in the bill, or any rule, regulation, standard or requirement issued pursuant to this bill.
- Establishes the T.A.M.P.O.N. Act Fund, into which penalties collected pursuant to the bill will be collected.
- Specifies that the department’s duties to initiate, implement, or enforce the provisions of the bill are contingent on sufficient funds in the Toxic Substances Control Account (TSCA), as determined by the Department of Finance, and upon an appropriation by the Legislature.
- Authorizes DTSC to utilize the funds in TSCA as a loan to develop the regulations and startup costs of the provisions of the bill until the T.A.M.P.O.N. Act Fund generates sufficient revenue to fund the department’s reasonable costs.
Background
- Perfluoroalkyl and polyfluoroalkyl substances (PFAS). Per- and poly-fluoroalkyl substances (PFAS) are a large group (nearly 15,000 according to the U. S. Environmental Protection Agency (U. S. EPA)) of synthetic substances that have been widely used in industrial and consumer applications for their heat, water, and oil resistance properties for over seven decades. As a result, PFAS are used extensively in a variety of products designed to be waterproof; grease, heat, stain resistant; or non-stick. Commercial applications span many sectors of the economy, including aerospace, apparel, automotive, building and construction, pharmaceuticals, medical devices, paints, electronics, semiconductors, energy, oil and gas exploration, first responder safety, firefighting foams, and health care.
Due to the strength and stability of the carbon-fluorine bond, PFAS are long-lasting chemicals that are exceedingly difficult to destroy, making them highly persistent in the environment and resulting in their classification as “forever chemicals.” PFAS can migrate into the soil, water, and air at all stages of their lifecycle, from production, to use, to disposal; many scientists argue that PFAS should be regulated as a class (rather than based only on use-phase risk) because of these life cycle impacts. Because of their ubiquity and persistence in the environment, many PFAS are found in indoor and outdoor environments, plants, soil, food, drinking water, wildlife, companion animals, production animals, and humans at locations across the nation and around the globe.
- Risks of PFAS. Simply defined, risk is a function of hazard and exposure. With the high chance for exposure and substantial hazard traits, PFAS pose high risks to human, environmental, and animal health. PFAS exposure occurs mainly through ingestion of contaminated food or liquids. Exposure can also occur through inhalation of indoor air or contact with contaminated media. PFAS can be transferred from mother to child during pregnancy and breastfeeding. PFAS remains in the body for a long time, so as people continue to be exposed to PFAS, the PFAS levels in their bodies may accumulate. According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations. DTSC also contends that exposure to PFAS can lead to adverse health outcomes in humans.
- PFAS in menstrual products. People who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. In menstrual products, PFAS can help make the material more absorbent and more stain-resistant. PFAS can be found in the raw materials used during a variety of steps throughout the manufacturing process.
Exposure to PFAS through menstrual products is particularly concerning because the vagina is an extremely vascular area and dermal exposure in the vaginal area is often higher than in other places of the body. Additionally, people using menstrual products are of reproductive age, and because PFAS are endocrine-disrupting chemicals, evidence has suggested that overall PFAS exposure could potentially impact unborn children, as well as the person using the product. Some scientists are concerned about the effects of PFAS during phases when the body is especially vulnerable, such as when someone gets their first period, is pregnant, or is in menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
Comments
- Purpose of Bill. According to the author, “These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAs in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
“AB 2515 takes a critical step towards protecting women’s health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California’s pursuit of gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean, and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women’s health must be prioritized over the use of these unnecessary chemicals. It’s past time to protect women and our environment.”
- PFAS concentration thresholds. This bill prohibits intentionally added PFAS by January 1, 2025, and authorizes DTSC to set a limit for regulating any PFAS in a product by January 1, 2027. Such a threshold may be warranted because determining whether PFAS were intentionally added in the manufacturing of a product can be a challenge when taking enforcement action. Furthermore, the health impacts from exposure to PFAS are the same, whether it was intentionally added or not. The author argues that manufacturers should be responsible for monitoring the entirety of the production line to ensure these products do not contain PFAS and take corrective action if it turns out they do.
Setting a concentration threshold can protect public health. There is no concentration of PFAS that has been proven safe, and as long-lasting chemicals, they build up in the human body and the environment over time. PFAS in different types of products may be of greater concern than others depending on how likely the chemicals are to enter the body. A menstrual product containing PFAS likely poses a more acute health risk than, for example, a jacket containing PFAS. This bill authorizes DTSC, an agency with scientific expertise in evaluating hazardous chemicals, to establish a limit for regulated PFAS in menstrual products, intentionally added or not.
- Have we seen this before? AB 246 (Papan, 2023) was substantially similar to this bill. Ultimately, the bill was vetoed, with the governor writing, “Previously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions.” Unlike AB 246, which did not have an overseeing agency, this bill grants DTSC oversight, requires the department to publish guidance as it relates to testing for PFAS in menstrual products, and requires them to adopt regulations or guidance as necessary to implement, administer, or enforce the prohibition, including setting a limit for PFAS in menstrual products.
- Consistency between related legislation. This bill’s enforcement and compliance procedure mirrors that of AB 347 (Ting), a bill to provide departmental enforcement on existing PFAS product bans that is currently pending on the Senate Floor. This bill contains a number of details for a registration, notice of violation, enforcement, and funding processes:
- Registration and testing. On or before January 1, 2027, the same date that the department will determine a threshold for all PFAS in menstrual products, DTSC is required to publish a list of accepted testing methods. On or before July 1, 2029, manufacturers of covered products are required to register with DTSC and provide the following to the department: 1) name and description of each covered product; 2) registration fee; and 3) A statement of compliance certifying that each covered product is in compliance with the applicable PFAS restriction. The bill authorizes DTSC to compel manufacturers to submit testing data to prove compliance. It is important to note that the registration process outlined in AB 2515 reverses the onus of proof onto manufacturers to produce information about their compliance, rather than DTSC, which will simply review the information.
- Notice of violation. DTSC is required to issue a notice of violation in one of three instances: 1) DTSC’s testing or the testing submitted as a part of the registration process indicates a covered product violates a restriction; 2) A menstrual product contains PFAS as an ingredient identified on a product label; or 3) the department finds a violation pursuant to any regulation, standard, or requirement issued or adopted pursuant to this bill. The notice of violation may assess an administrative penalty and require compliance with the covered PFAS restriction, including requiring the entity to cease the sale or distribution of the product. The department may also receive reports of violations and rely on testing provided by a consumer, business, research institution, or non-profits, but DTSC must independently verify reports or testing data alleging noncompliance.
- Enforcement. A violation of the PFAS prohibition in this bill is punishable by a civil and administrative penalty. The bill specifies a number of different considerations a court may consider upon issuing a civil penalty. The Attorney General is authorized to take action, by request of the department.
- Funding. The bill creates the T.A.M.P.O.N. Act Fund, into which any moneys from penalties collected will be deposited. The bill specifies that the department’s duties to initiate, implement, or enforce the provisions of the bill are contingent on sufficient funds in the Toxic Substances Control Account (TSCA), as determined by the Department of Finance, and upon an appropriation by the Legislature. The bill authorizes DTSC to utilize the funds in TSCA as a loan to develop the regulations and startup costs of the provisions of the bill until the T.A.M.P.O.N. Act Fund generates sufficient revenue to fund the department’s reasonable costs.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee:
- Ongoing costs of about $2 to $3 million annually (Toxic Substance Control Account [TSCA]) to the Department of Toxic Substances Control (DTSC) for 6-10 positions to develop regulations and guidance in order to implement the compliance and enforcement activities required by this bill. TSCA is supported by the Environmental Fee. According to DTSC, based on current assumptions, the Environmental Fee would need to be increased by roughly 2%, spread equally across each fee tier, to generate sufficient revenues to support the increase in expenditures.
- To the extent civil penalties created by this bill are collected, potential revenue impacts of an unknown amount (T.A.M.P.O.N. Act Fund). While this bill would make any penalty revenue deposited into the T.A.M.P.O.N. Act Fund available to DTSC, the department notes penalty revenue is generally insufficient to cover its costs.
SUPPORT: (Verified 8/23/24)
A Voice for Choice Advocacy
American Association of University Women - California
American College of Obstetricians and Gynecologists District Ix
California Association of Sanitation Agencies
California Health Coalition Advocacy
California Professional Firefighters
California Water Association
City of Camarillo
City of Roseville
City of Santa Rosa
Educate. Advocate.
Environmental Working Group
Los Angeles County Sanitation Districts
Planned Parenthood Affiliates of California
Women's Voices for The Earth
OPPOSITION: (Verified 8/23/24)
American Chemistry Council
American Forest & Paper Association
Breast Cancer Prevention Partners
California Chamber of Commerce
California Manufacturers and Technology Association
California Safe Schools Coalition
Center for Baby and Adult Hygiene Products
Center for Environmental Health
Civil Justice Association of California
Clean Water Action
Cleanearth4kids.org
Consumer Attorneys of California
Consumer Brands Association
Consumer Healthcare Products Association
Facts Families Advocating for Chemical and Toxics Safety
Gmo Science
Natural Resources Defense Council
Seventh Generation Advisors
ARGUMENTS IN SUPPORT: According to the California Association of Sanitation Agencies, “This is an important source control strategy for reducing PFAS contamination in wastewater systems and California’s watersheds. Feminine hygiene products that contain PFAS have a direct pathway to wastewater when disposable products are erroneously flushed, or when reusable products are washed in household laundry systems. CASA is a statewide trade association representing a variety of public agencies that provide essential public services to millions of Californians, including wastewater collection, treatment, and disposal, as well as water recycling, biosolids management, and renewable energy deployment.”
ARGUMENTS IN OPPOSITION: According to a coalition of manufacturers, Manufacturers fully intend to comply with these prohibitions on intentionally added PFAS and understand the need for practical regulation in this space, however, unavoidable trace quantities of a chemical may be present and beyond the manufacturer’s control. Any enforcement must take into consideration the pervasiveness of PFAS and that manufacturers are not intentionally adding the chemical to these products. Enforcement should not act as a mechanism that limits product availability or drives consumer uncertainty as to product safety, but instead be justly focused on any bad actors who are intentionally adding PFAS chemicals to their respective products.
ASSEMBLY FLOOR: 61-1, 5/22/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Davies, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NOES: Dixon
NO VOTE RECORDED: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Flora, Vince Fong, Friedman, Gallagher, Holden, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Luz Rivas, Sanchez, Ta
Prepared by: Holly Rudel / E.Q. / (916) 651-4108
8/26/24 14:21:46
**** END ****
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2515 |
THIRD READING
Bill No: AB 2515
Author: Papan (D)
Amended: 8/23/24 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-0, 6/19/24
AYES: Allen, Gonzalez, Hurtado, Menjivar, Skinner
NO VOTE RECORDED: Dahle, Nguyen
SENATE JUDICIARY COMMITTEE: 10-0, 7/2/24
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Roth, Stern, Wahab
NO VOTE RECORDED: Niello
SENATE APPROPRIATIONS COMMITTEE: 5-0, 8/15/24
AYES: Caballero, Ashby, Becker, Bradford, Wahab
NO VOTE RECORDED: Jones, Seyarto
ASSEMBLY FLOOR: 61-1, 5/22/24 - See last page for vote
SUBJECT: Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
SOURCE: Author
DIGEST:
This bill prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated per- or poly-fluoroalkyl substance (PFAS) as defined.
Senate Floor Amendments of 8/23/24 provide details about the enforcement and compliance process, including specifying requirements on the Department of Toxic Substances Control (DTSC) and manufacturers of menstrual products. Provide details about the funding mechanism for the provisions in the bill. Removes the “right to cure” provision previously included in the bill.
ANALYSIS:
Existing law:
- Under the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) (Health and Safety Code (HSC) § 25249.5 et seq.):
- Prohibits a person, in the course of doing business, from knowingly discharging or releasing a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water.
- Prohibits a person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.
- Requires the Governor to publish a list of chemicals known to cause cancer or reproductive toxicity and to annually revise the list. The Office of Environmental Health Hazard Assessment (OEHHA) has listed perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which are members of the PFAS class, as chemicals known to the state to cause developmental toxicity and cancer.
- Under the Safer Consumer Products (Green Chemistry) statutes (HSC § 25252 et seq.):
- Requires the Department of Toxic Substances Control (DTSC) to adopt regulations to establish a process to identify and prioritize chemicals or chemical ingredients in consumer products that may be considered chemicals of concern, as specified.
- Requires DTSC to adopt regulations to establish a process to evaluate chemicals of concern in consumer products, and their potential alternatives, to determine how to best limit exposure or to reduce the level of hazard posed by a chemical of concern.
- Specifies, but does not limit, regulatory responses that DTSC can take following the completion of an alternatives analysis, ranging from no action to a prohibition of the chemical in the product.
- The Menstrual Products Right to Know Act of 2020, requires a package containing menstrual products manufactured on or after January 1, 2023, for sale or distribution in the state to be labeled with all ingredients in the product by weight and this information to be posted on the internet.
This bill:
- Prohibits, commencing January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains intentionally added PFAS.
- Prohibits, commencing January 1, 2027, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that has a total organic fluorine content at or above a limit determined by DTSC.
- Requires DTSC, on or before January 1, 2027, to publish a list of acceptable PFAS testing methods on their website.
- Requires DTSC, on or before January 1, 2029, to adopt regulations or guidance as necessary to implement, administer, and enforce the prohibition, including requiring DTSC to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
- Requires manufacturers of menstrual products, on or before July 1, 2029, to register with the department and provide:
- The name and description of each covered product; and
- A registration fee; and
- A statement of compliance certifying that each covered product is in compliance with the applicable PFAS restriction.
- Authorizes DTSC to compel manufacturers to submit testing data to prove compliance with the PFAS restriction.
- Authorizes DTSC to issue a notice of violation if any of the following occur:
- DTSC’s testing or test results submitted as a part of the registration process indicates that a menstrual product contains regulated PFAS; or
- The department determines a violation if a menstrual product contains regulated PFAS after finding it as an ingredient on the product’s label; or
- The department finds a violation of the prohibition in the bill, or any rule, regulation, standard or requirement issued pursuant to this bill.
- Establishes the T.A.M.P.O.N. Act Fund, into which penalties collected pursuant to the bill will be collected.
- Specifies that the department’s duties to initiate, implement, or enforce the provisions of the bill are contingent on sufficient funds in the Toxic Substances Control Account (TSCA), as determined by the Department of Finance, and upon an appropriation by the Legislature.
- Authorizes DTSC to utilize the funds in TSCA as a loan to develop the regulations and startup costs of the provisions of the bill until the T.A.M.P.O.N. Act Fund generates sufficient revenue to fund the department’s reasonable costs.
Background
- Perfluoroalkyl and polyfluoroalkyl substances (PFAS). Per- and poly-fluoroalkyl substances (PFAS) are a large group (nearly 15,000 according to the U. S. Environmental Protection Agency (U. S. EPA)) of synthetic substances that have been widely used in industrial and consumer applications for their heat, water, and oil resistance properties for over seven decades. As a result, PFAS are used extensively in a variety of products designed to be waterproof; grease, heat, stain resistant; or non-stick. Commercial applications span many sectors of the economy, including aerospace, apparel, automotive, building and construction, pharmaceuticals, medical devices, paints, electronics, semiconductors, energy, oil and gas exploration, first responder safety, firefighting foams, and health care.
Due to the strength and stability of the carbon-fluorine bond, PFAS are long-lasting chemicals that are exceedingly difficult to destroy, making them highly persistent in the environment and resulting in their classification as “forever chemicals.” PFAS can migrate into the soil, water, and air at all stages of their lifecycle, from production, to use, to disposal; many scientists argue that PFAS should be regulated as a class (rather than based only on use-phase risk) because of these life cycle impacts. Because of their ubiquity and persistence in the environment, many PFAS are found in indoor and outdoor environments, plants, soil, food, drinking water, wildlife, companion animals, production animals, and humans at locations across the nation and around the globe.
- Risks of PFAS. Simply defined, risk is a function of hazard and exposure. With the high chance for exposure and substantial hazard traits, PFAS pose high risks to human, environmental, and animal health. PFAS exposure occurs mainly through ingestion of contaminated food or liquids. Exposure can also occur through inhalation of indoor air or contact with contaminated media. PFAS can be transferred from mother to child during pregnancy and breastfeeding. PFAS remains in the body for a long time, so as people continue to be exposed to PFAS, the PFAS levels in their bodies may accumulate. According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations. DTSC also contends that exposure to PFAS can lead to adverse health outcomes in humans.
- PFAS in menstrual products. People who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. In menstrual products, PFAS can help make the material more absorbent and more stain-resistant. PFAS can be found in the raw materials used during a variety of steps throughout the manufacturing process.
Exposure to PFAS through menstrual products is particularly concerning because the vagina is an extremely vascular area and dermal exposure in the vaginal area is often higher than in other places of the body. Additionally, people using menstrual products are of reproductive age, and because PFAS are endocrine-disrupting chemicals, evidence has suggested that overall PFAS exposure could potentially impact unborn children, as well as the person using the product. Some scientists are concerned about the effects of PFAS during phases when the body is especially vulnerable, such as when someone gets their first period, is pregnant, or is in menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
Comments
- Purpose of Bill. According to the author, “These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAs in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
“AB 2515 takes a critical step towards protecting women’s health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California’s pursuit of gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean, and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women’s health must be prioritized over the use of these unnecessary chemicals. It’s past time to protect women and our environment.”
- PFAS concentration thresholds. This bill prohibits intentionally added PFAS by January 1, 2025, and authorizes DTSC to set a limit for regulating any PFAS in a product by January 1, 2027. Such a threshold may be warranted because determining whether PFAS were intentionally added in the manufacturing of a product can be a challenge when taking enforcement action. Furthermore, the health impacts from exposure to PFAS are the same, whether it was intentionally added or not. The author argues that manufacturers should be responsible for monitoring the entirety of the production line to ensure these products do not contain PFAS and take corrective action if it turns out they do.
Setting a concentration threshold can protect public health. There is no concentration of PFAS that has been proven safe, and as long-lasting chemicals, they build up in the human body and the environment over time. PFAS in different types of products may be of greater concern than others depending on how likely the chemicals are to enter the body. A menstrual product containing PFAS likely poses a more acute health risk than, for example, a jacket containing PFAS. This bill authorizes DTSC, an agency with scientific expertise in evaluating hazardous chemicals, to establish a limit for regulated PFAS in menstrual products, intentionally added or not.
- Have we seen this before? AB 246 (Papan, 2023) was substantially similar to this bill. Ultimately, the bill was vetoed, with the governor writing, “Previously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions.” Unlike AB 246, which did not have an overseeing agency, this bill grants DTSC oversight, requires the department to publish guidance as it relates to testing for PFAS in menstrual products, and requires them to adopt regulations or guidance as necessary to implement, administer, or enforce the prohibition, including setting a limit for PFAS in menstrual products.
- Consistency between related legislation. This bill’s enforcement and compliance procedure mirrors that of AB 347 (Ting), a bill to provide departmental enforcement on existing PFAS product bans that is currently pending on the Senate Floor. This bill contains a number of details for a registration, notice of violation, enforcement, and funding processes:
- Registration and testing. On or before January 1, 2027, the same date that the department will determine a threshold for all PFAS in menstrual products, DTSC is required to publish a list of accepted testing methods. On or before July 1, 2029, manufacturers of covered products are required to register with DTSC and provide the following to the department: 1) name and description of each covered product; 2) registration fee; and 3) A statement of compliance certifying that each covered product is in compliance with the applicable PFAS restriction. The bill authorizes DTSC to compel manufacturers to submit testing data to prove compliance. It is important to note that the registration process outlined in AB 2515 reverses the onus of proof onto manufacturers to produce information about their compliance, rather than DTSC, which will simply review the information.
- Notice of violation. DTSC is required to issue a notice of violation in one of three instances: 1) DTSC’s testing or the testing submitted as a part of the registration process indicates a covered product violates a restriction; 2) A menstrual product contains PFAS as an ingredient identified on a product label; or 3) the department finds a violation pursuant to any regulation, standard, or requirement issued or adopted pursuant to this bill. The notice of violation may assess an administrative penalty and require compliance with the covered PFAS restriction, including requiring the entity to cease the sale or distribution of the product. The department may also receive reports of violations and rely on testing provided by a consumer, business, research institution, or non-profits, but DTSC must independently verify reports or testing data alleging noncompliance.
- Enforcement. A violation of the PFAS prohibition in this bill is punishable by a civil and administrative penalty. The bill specifies a number of different considerations a court may consider upon issuing a civil penalty. The Attorney General is authorized to take action, by request of the department.
- Funding. The bill creates the T.A.M.P.O.N. Act Fund, into which any moneys from penalties collected will be deposited. The bill specifies that the department’s duties to initiate, implement, or enforce the provisions of the bill are contingent on sufficient funds in the Toxic Substances Control Account (TSCA), as determined by the Department of Finance, and upon an appropriation by the Legislature. The bill authorizes DTSC to utilize the funds in TSCA as a loan to develop the regulations and startup costs of the provisions of the bill until the T.A.M.P.O.N. Act Fund generates sufficient revenue to fund the department’s reasonable costs.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee:
- Ongoing costs of about $2 to $3 million annually (Toxic Substance Control Account [TSCA]) to the Department of Toxic Substances Control (DTSC) for 6-10 positions to develop regulations and guidance in order to implement the compliance and enforcement activities required by this bill. TSCA is supported by the Environmental Fee. According to DTSC, based on current assumptions, the Environmental Fee would need to be increased by roughly 2%, spread equally across each fee tier, to generate sufficient revenues to support the increase in expenditures.
- To the extent civil penalties created by this bill are collected, potential revenue impacts of an unknown amount (T.A.M.P.O.N. Act Fund). While this bill would make any penalty revenue deposited into the T.A.M.P.O.N. Act Fund available to DTSC, the department notes penalty revenue is generally insufficient to cover its costs.
SUPPORT: (Verified 8/23/24)
A Voice for Choice Advocacy
American Association of University Women - California
American College of Obstetricians and Gynecologists District Ix
California Association of Sanitation Agencies
California Health Coalition Advocacy
California Professional Firefighters
California Water Association
City of Camarillo
City of Roseville
City of Santa Rosa
Educate. Advocate.
Los Angeles County Sanitation Districts
Planned Parenthood Affiliates of California
Women's Voices for The Earth
OPPOSITION: (Verified 8/23/24)
American Chemistry Council
American Forest & Paper Association
Breast Cancer Prevention Partners
California Chamber of Commerce
California Manufacturers and Technology Association
California Safe Schools Coalition
Center for Baby and Adult Hygiene Products
Center for Environmental Health
Civil Justice Association of California
Clean Water Action
Cleanearth4kids.org
Consumer Attorneys of California
Consumer Brands Association
Consumer Healthcare Products Association
Environmental Working Group
Facts Families Advocating for Chemical and Toxics Safety
Gmo Science
Natural Resources Defense Council
Seventh Generation Advisors
ARGUMENTS IN SUPPORT: According to the California Association of Sanitation Agencies, “This is an important source control strategy for reducing PFAS contamination in wastewater systems and California’s watersheds. Feminine hygiene products that contain PFAS have a direct pathway to wastewater when disposable products are erroneously flushed, or when reusable products are washed in household laundry systems. CASA is a statewide trade association representing a variety of public agencies that provide essential public services to millions of Californians, including wastewater collection, treatment, and disposal, as well as water recycling, biosolids management, and renewable energy deployment.”
ARGUMENTS IN OPPOSITION: According to a coalition of manufacturers, “Manufacturers fully intend to comply with these prohibitions on intentionally added PFAS and understand the need for practical regulation in this space, however, unavoidable trace quantities of a chemical may be present and beyond the manufacturer’s control. Any enforcement must take into consideration the pervasiveness of PFAS and that manufacturers are not intentionally adding the chemical to these products. Enforcement should not act as a mechanism that limits product availability or drives consumer uncertainty as to product safety, but instead be justly focused on any bad actors who are intentionally adding PFAS chemicals to their respective products.”
ASSEMBLY FLOOR: 61-1, 5/22/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Davies, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NOES: Dixon
NO VOTE RECORDED: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Flora, Vince Fong, Friedman, Gallagher, Holden, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Luz Rivas, Sanchez, Ta
Prepared by: Holly Rudel / E.Q. / (916) 651-4108
8/25/24 13:35:36
**** END ****
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2515 |
THIRD READING
Bill No: AB 2515
Author: Papan (D)
Amended: 8/15/24 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-0, 6/19/24
AYES: Allen, Gonzalez, Hurtado, Menjivar, Skinner
NO VOTE RECORDED: Dahle, Nguyen
SENATE JUDICIARY COMMITTEE: 10-0, 7/2/24
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Roth, Stern, Wahab
NO VOTE RECORDED: Niello
SENATE APPROPRIATIONS COMMITTEE: 5-0, 8/15/24
AYES: Caballero, Ashby, Becker, Bradford, Wahab
NO VOTE RECORDED: Jones, Seyarto
ASSEMBLY FLOOR: 61-1, 5/22/24 - See last page for vote
SUBJECT: Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
SOURCE: Author
DIGEST:
This bill prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated per- or poly-fluoroalkyl substance (PFAS) as defined.
ANALYSIS:
Existing law:
- Provides, under the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) (Health & Safety Code (HSC) § 25249.5 et seq.):
- Prohibits a person, in the course of doing business, from knowingly discharging or releasing a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water.
- Prohibits a person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.
- Requires the Governor to publish a list of chemicals known to cause cancer or reproductive toxicity and to annually revise the list. The Office of Environmental Health Hazard Assessment (OEHHA) has listed perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which are members of the PFAS class, as chemicals known to the state to cause developmental toxicity and cancer.
- Provides, under the Safer Consumer Products (Green Chemistry) statutes (HSC § 25252 et seq.):
- Requires the Department of Toxic Substances Control (DTSC) to adopt regulations to establish a process to identify and prioritize chemicals or chemical ingredients in consumer products that may be considered chemicals of concern, as specified.
- Requires DTSC to adopt regulations to establish a process to evaluate chemicals of concern in consumer products, and their potential alternatives, to determine how to best limit exposure or to reduce the level of hazard posed by a chemical of concern.
- Specifies, but does not limit, regulatory responses that DTSC can take following the completion of an alternatives analysis, ranging from no action to a prohibition of the chemical in the product.
- Requires, through the Menstrual Products Right to Know Act of 2020, a package containing menstrual products manufactured on or after January 1, 2023, for sale or distribution in the state to be labeled with all ingredients in the product by weight and this information to be posted on the internet.
This bill:
- Prohibits, commencing January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains intentionally added PFAS.
- Prohibits, commencing January 1, 2027, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that has a total organic fluorine content at or above a limit determined by DTSC.
- Authorizes DTSC to adopt regulations or guidance as necessary to implement, administer, and enforce the prohibition, including requiring DTSC to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
- Authorizes DTSC to issue a notice of violation after all of the following occur:
- DTSC has tested a sufficient sample size, as determined by the department, of the menstrual product alleged to be in violation of this article and found the presence of regulated PFAS.
- The department has provided the manufacturer, via certified mail, written notice that does all of the following:
- Describes the alleged violation, including the data suggesting the presence of regulated PFAS; and
- Requires corrective action by the manufacturer to bring the subject menstrual product into compliance, if applicable.
- If mandated by the department, the manufacturer has failed to take corrective or mitigating actions to bring the subject menstrual product into compliance, within the 45-day period, as provided.
- Authorizes the department to extend the time period for a manufacturer to take any mitigation or corrective action.
- Provides that an initial violation is deemed to have occurred upon the issuance of an initial notice of violation, as described above, if DTSC finds that a person has manufactured, distributed, sold, or offered for sale a menstrual product in a single product line of the same brand, product type, size, and absorbency that contains regulated PFAS.
- A subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of these provisions.
- Requires a manufacturer, upon the issuance of a notice of violation by DTSC, to publish the notice on its website and social media accounts, as specified.
- Provides that a person or entity that violates any of these provisions is liable for a civil penalty not to exceed $125,000. A second and subsequent violation is punishable by a civil penalty not to exceed $125,000 per day for each subsequent violation.
- Provides that, in assessing the amount of a civil penalty for a violation of this chapter, the court shall consider a number of different factors, as specified.
- An action may be brought by the Attorney General at the request of DTSC, a city attorney, a county counsel, or a city prosecutor in a city or city and county having a full-time city prosecutor.
Background
- Perfluoroalkyl and polyfluoroalkyl substances (PFAS). Per- and poly-fluoroalkyl substances (PFAS) are a large group (nearly 15,000 according to the U. S. Environmental Protection Agency (U. S. EPA)) of synthetic substances that have been widely used in industrial and consumer applications for their heat, water, and oil resistance properties for over seven decades. As a result, PFAS are used extensively in a variety of products designed to be waterproof; grease, heat, stain resistant; or non-stick. Commercial applications span many sectors of the economy, including aerospace, apparel, automotive, building and construction, pharmaceuticals, medical devices, paints, electronics, semiconductors, energy, oil and gas exploration, first responder safety, firefighting foams, and health care.
Due to the strength and stability of the carbon-fluorine bond, PFAS are long-lasting chemicals that are exceedingly difficult to destroy, making them highly persistent in the environment and resulting in their classification as “forever chemicals.” PFAS can migrate into the soil, water, and air at all stages of their lifecycle, from production, to use, to disposal; many scientists argue that PFAS should be regulated as a class (rather than based only on use-phase risk) because of these life cycle impacts. Because of their ubiquity and persistence in the environment, many PFAS are found in indoor and outdoor environments, plants, soil, food, drinking water, wildlife, companion animals, production animals, and humans at locations across the nation and around the globe.
- Risks of PFAS. Simply defined, risk is a function of hazard and exposure. With the high chance for exposure and substantial hazard traits, PFAS pose high risks to human, environmental, and animal health. PFAS exposure occurs mainly through ingestion of contaminated food or liquids. Exposure can also occur through inhalation of indoor air or contact with contaminated media. PFAS can be transferred from mother to child during pregnancy and breastfeeding. PFAS remains in the body for a long time, so as people continue to be exposed to PFAS, the PFAS levels in their bodies may accumulate.
According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations. DTSC also contends that exposure to PFAS can lead to adverse health outcomes in humans.
- PFAS in menstrual products. People who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. In menstrual products, PFAS can help make the material more absorbent and more stain-resistant. PFAS can be found in the raw materials used during a variety of steps throughout the manufacturing process.
Exposure to PFAS through menstrual products is particularly concerning because the vagina is an extremely vascular area and dermal exposure in the vaginal area is often higher than in other places of the body. Additionally, people using menstrual products are of reproductive age, and because PFAS are endocrine-disrupting chemicals, evidence has suggested that overall PFAS exposure could potentially impact unborn children, as well as the person using the product. Some scientists are concerned about the effects of PFAS during phases when the body is especially vulnerable, such as when someone gets their first period, is pregnant, or is in menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
Comments
- Purpose of Bill. According to the author, “These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAs in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
“AB 2515 takes a critical step towards protecting women’s health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California’s pursuit of gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean, and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women’s health must be prioritized over the use of these unnecessary chemicals. It’s past time to protect women and our environment.”
- PFAS concentration thresholds. This bill prohibits intentionally added PFAS by January 1, 2025, and authorizes DTSC to set a limit for regulating any PFAS in a product by January 1, 2027. Such a threshold may be warranted because determining whether PFAS were intentionally added in the manufacturing of a product can be a challenge when taking enforcement action. Furthermore, the health impacts from exposure to PFAS are the same, whether it was intentionally added or not. The author argues that manufacturers should be responsible for monitoring the entirety of the production line to ensure these products do not contain PFAS and take corrective action if it turns out they do.
Setting a concentration threshold can protect public health. There is no concentration of PFAS that has been proven safe, and as long-lasting chemicals, they build up in the human body and the environment over time. PFAS in different types of products may be of greater concern than others depending on how likely the chemicals are to enter the body. A menstrual product containing PFAS likely poses a more acute health risk than, for example, a jacket containing PFAS. This bill authorizes DTSC, an agency with scientific expertise in evaluating hazardous chemicals, to establish a limit for regulated PFAS in menstrual products, intentionally added or not.
- Have we seen this before? AB 246 (Papan, 2023) was substantially similar to this bill. Ultimately, the bill was vetoed, with the governor writing, “Previously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions.” Unlike AB 246, which did not have an overseeing agency, this bill grants DTSC oversight, requires the department to publish guidance as it relates to testing for PFAS in menstrual products, and authorizes (but does not require) them to adopt regulations or guidance as necessary to implement, administer, or enforce the prohibition, including setting a limit for PFAS in menstrual products. The timelines found in this bill have not been updated from AB 246.
- Enforcement provisions. This bill provides for enforcement through civil liability. A violation of these provisions makes a person liable for a civil penalty not to exceed $125,000 for a first violation, and not to exceed $250,000 for each subsequent violation. The bill specifies what constitutes an initial and subsequent violation for an item of a single product line of the same brand, product type, size, and absorbency.
The bill also specifies a number of different requirements that must be met for DTSC to issue a notice of violation. One critical piece is providing a manufacturer a 45-day period to respond in writing to provide information regarding the alleged violation, including whether an exception applies (though notably, no exceptions are specified in the bill) and any mitigating or corrective action the manufacturer has taken. If a manufacturer has failed to take corrective action, the department may extend the time period for the manufacturer to come into compliance. This “right to cure” provision has elicited opposition from a number of environmental groups originally in support of the bill, who argue that this may incentivize manufacturers to delay coming into compliance if they will only receive a “fix it ticket” on the first violation.
- Noticing provision. This bill also stipulates that if DTSC issues a notice of violation to a manufacturer, the manufacturer must publish the notice of violation on their internet website and social media accounts. According to the Senate Judiciary Committee analysis, “The notice prescribed by this bill implicates the First Amendment because whenever government requires a business to make disclosures, it raises potential First Amendment concerns as a form of “compelled speech.” The First Amendment prevents the government from compelling speech, just as it prevents the government from restraining speech. However, courts have held that certain types of commercial speech—including state and federal statutes requiring disclosure of information that is useful to the consumer (food labeling requirements and prescription drug warnings)—have to meet a less exacting standard than efforts to regulate political or expressive speech…
“Generally, courts have struck down statutes as compelled speech only those disclosure requirements that force a person or entity to directly or indirectly endorse positions or ideas to which the person or business objects; create a false or unwanted association with a group, movement, or set of ideas; or force the person or entity to support a group or position with which it disagrees…
“However, states do not have unconstrained authority to prescribe commercial speech, unrestrained by the First Amendment. Two requirements in particular are relevant to this bill. First, the U.S. Supreme Court has held that the content of any compelled disclosure must be limited to ‘purely factual and uncontroversial information….’ The second requirement is that the speech not be ‘unjustified or unduly burdensome.’ It is unclear if the notice requirement in the bill would run afoul of these principles. Posting that they have received a notice of violation from DTSC is arguably a purely factual statement.”
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee:
- Ongoing costs of about $2 to $3 million annually (Toxic Substance Control Account [TSCA]) to the Department of Toxic Substances Control (DTSC) for 6-10 positions to develop regulations and guidance in order to implement the compliance and enforcement activities required by this bill. TSCA is supported by the Environmental Fee. According to DTSC, based on current assumptions, the Environmental Fee would need to be increased by roughly 2%, spread equally across each fee tier, to generate sufficient revenues to support the increase in expenditures.
- To the extent civil penalties created by this bill are collected, potential revenue impacts of an unknown amount (T.A.M.P.O.N. Act Fund). While this bill would make any penalty revenue deposited into the T.A.M.P.O.N. Act Fund available to DTSC, the department notes penalty revenue is generally insufficient to cover its costs.
SUPPORT: (Verified 8/16/24)
A Voice for Choice Advocacy
American Association of University Women - California
American College of Obstetricians and Gynecologists District Ix
California Association of Sanitation Agencies
California Health Coalition Advocacy
California Professional Firefighters
California Water Association
City of Camarillo
City of Roseville
City of Santa Rosa
Educate. Advocate.
Los Angeles County Sanitation Districts
Planned Parenthood Affiliates of California
Women's Voices for The Earth
OPPOSITION: (Verified 8/16/24)
American Chemistry Council
American Forest & Paper Association
Breast Cancer Prevention Partners
California Chamber of Commerce
California Manufacturers and Technology Association
California Safe Schools Coalition
Center for Baby and Adult Hygiene Products
Center for Environmental Health
Civil Justice Association of California
Clean Water Action
Cleanearth4kids.org
Consumer Attorneys of California
Consumer Brands Association
Consumer Healthcare Products Association
Environmental Working Group
Facts Families Advocating for Chemical and Toxics Safety
Gmo Science
Natural Resources Defense Council
Seventh Generation Advisors
ARGUMENTS IN SUPPORT: According to the California Association of Sanitation Agencies, “This is an important source control strategy for reducing PFAS contamination in wastewater systems and California’s watersheds. Feminine hygiene products that contain PFAS have a direct pathway to wastewater when disposable products are erroneously flushed, or when reusable products are washed in household laundry systems. CASA is a statewide trade association representing a variety of public agencies that provide essential public services to millions of Californians, including wastewater collection, treatment, and disposal, as well as water recycling, biosolids management, and renewable energy deployment.”
ARGUMENTS IN OPPOSITION: According to a coalition of environmental groups, “The “right-to-cure” provisions in AB 2515 would to a large extent negate the provisions banning PFAS in menstrual products. Essentially, there would be no consequences, not even a finding of a violation, until the second time that a manufacturer’s product was found to contain PFAS. There would be no reason for manufacturers not to wait to take action until after PFAS was found in their product the first time. Not only would the provision undermine the restrictions in this bill, it would encourage the insertion of similar provisions in other bills. We also note that the provision that we object to will increase costs to the Department of Toxic Substances Control as they proceed through multiple steps to assess the presence of PFAS in these products and then have a back and forth with a manufacturer.”
ASSEMBLY FLOOR: 61-1, 5/22/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Davies, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NOES: Dixon
NO VOTE RECORDED: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Flora, Vince Fong, Friedman, Gallagher, Holden, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Luz Rivas, Sanchez, Ta
Prepared by: Holly Rudel / E.Q. / (916) 651-4108
8/19/24 10:47:32
**** END ****
SENATE COMMITTEE ON
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
AB 2515 (Papan) - Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
This bill would prohibit a person from manufacturing, distributing, selling, or offering for sale any menstrual products that contain, whether intentionally or unintentionally, concentrations of regulated per- or poly-fluoroalkyl substance (PFAS) at or above 10 parts per million, as specified.
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on August 15, 2024
Fiscal Impact:
- Ongoing costs of about $2 to $3 million annually (Toxic Substance Control Account [TSCA]) to the Department of Toxic Substances Control (DTSC) for 6-10 positions to develop regulations and guidance in order to implement the compliance and enforcement activities required by this bill. TSCA is supported by the Environmental Fee. According to DTSC, based on current assumptions, the Environmental Fee would need to be increased by roughly 2%, spread equally across each fee tier, to generate sufficient revenues to support the increase in expenditures.
- To the extent civil penalties created by this bill are collected, potential revenue impacts of an unknown amount (T.A.M.P.O.N. Act Fund ). While this bill would make any penalty revenue deposited into the T.A.M.P.O.N. Act Fund available to DTSC, the department notes penalty revenue is generally insufficient to cover its costs.
Committee Amendments:
Committee amendments would require DTSC to determine the threshold for concentrations of regulated PFAS rather than setting them statutorily.
-- END --
SENATE COMMITTEE ON APPROPRIATIONS
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
AB 2515 (Papan) - Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
Version: August 5, 2024 | Policy Vote: E.Q. 5 - 0, JUD. 10 - 0 |
Urgency: No | Mandate: Yes |
Hearing Date: August 12, 2024 | Consultant: Ashley Ames |
Bill Summary:
This bill would prohibit a person from manufacturing, distributing, selling, or offering for sale any menstrual products that contain, whether intentionally or unintentionally, concentrations of regulated per- or poly-fluoroalkyl substance (PFAS) at or above 10 parts per million, as specified.
Fiscal Impact:
- The Department of Toxic Substance Control (DTSC) estimates ongoing costs of about $1.7 million in 2025-26 and $2.6 million annually thereafter (Toxic Substance Control Account [TSCA]) for 6-10 positions to develop regulations and guidance in order to implement the compliance and enforcement activities required by this bill. TSCA is supported by the Environmental Fee. According to DTSC, based on current assumptions, the Environmental Fee would need to be increased by approximately 2%, spread equally across each fee tiers, to generate sufficient revenues to support the increase in expenditures.
- To the extent civil penalties created by this bill are collected, potential revenue impacts of an unknown amount (T.A.M.P.O.N. Act Fund ). While this bill would make any penalty revenue deposited into the T.A.M.P.O.N. Act Fund available to DTSC, the department notes penalty revenue is generally insufficient to cover its costs.
Background:
According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations. Several PFAS bioaccumulate significantly in animals or plants and emerging evidence points to their phytotoxicity, aquatic toxicity, and terrestrial ecotoxicity. DTSC also contends that exposure to PFAS can lead to adverse health outcomes in humans. According to the US EPA, current peer-reviewed scientific studies have shown that exposure to certain levels of PFAS may lead to: reproductive effects such as decreased fertility or increased high blood pressure in pregnant women; developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations, or behavioral changes; increased risk of some cancers, including prostate, kidney, and testicular cancers; reduced ability of the body’s immune system to fight infections, including reduced vaccine response; interference with the body’s natural hormones; and, increased cholesterol levels and/or risk of obesity. PFAS can cause these health harms at extremely low levels; California and the EPA warn of the health harms for some PFAS in the parts per trillion range (the equivalent of one drop of water in 20 Olympic-sized swimming pools).
PFAS in menstrual products. People who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. In menstrual products, PFAS can help make the material more absorbent and more stain-resistant. PFAS can be found in the raw materials used during a variety of steps throughout the manufacturing process.
To illustrate the prevalence of PFAS in menstrual products, the author of the bill points to tests on menstrual products commissioned by the consumer watchdog site, Mamavation, and Environmental Health News. The tests for this study were conducted at US EPA-certified laboratories between 2020 and 2022 and detected organic fluorine, a marker for PFAS, in several menstrual products. The study found PFAS at concentrations ranging from 19 to 28 ppm in 22% of 23 tested tampon products. Of 46 sanitary pads, panty liners, and incontinence pads tested, 48% showed concentrations ranging from 11 to 154 ppm. Additional tests of period underwear products found that 65% had PFAS at concentrations ranging from 10 to 940 ppm. Detections of PFAS at concentrations greater than 3,000 ppm in period underwear had previously led to a high-profile lawsuit against the manufacturer, which was settled in 2023.
Exposure to PFAS through menstrual products is particularly concerning because the vagina is an extremely vascular area and dermal exposure in the vaginal area is often higher than in other places of the body. Additionally, people using menstrual products are of reproductive age, and because PFAS are endocrine-disrupting chemicals, evidence has suggested that overall PFAS exposure could potentially impact unborn children, as well as the person using the product. Some scientists are concerned about the effects of PFAS during phases when the body is especially vulnerable, such as when someone gets their first period, is pregnant, or is in menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
Proposed Law:
This bill would prohibit a person from manufacturing, distributing, selling, or offering for sale any menstrual products that contain concentrations of regulated PFAS at or above 10 parts per million. Specifically, it would:
- Prohibit, beginning January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual product that contains regulated PFAS, as defined.
- Prohibit, beginning January 1, 2027, a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual product that contains, whether intentionally or unintentionally, concentrations of PFAS at or above 10 parts per million (ppm).
- Authorize DTSC to issue a notice of violation after all of the following occur:
- DTSC has tested a sufficient sample size, as determined by the department, of the menstrual product alleged to be in violation of this article and found the presence of regulated PFAS.
- The department has provided the manufacturer, via certified mail, written notice that does all of the following: (i) describes the alleged violation, including the data suggesting the presence of regulated PFAS; and (ii) requires corrective action by the manufacturer to bring the subject menstrual product into compliance, if applicable.
- If mandated by the department, the manufacturer has failed to take corrective or mitigating actions to bring the subject menstrual product into compliance, within the 45-day period, as provided.
- Provide that an initial violation is deemed to have occurred upon the issuance of an initial notice of violation, as described above, if DTSC finds that a person has manufactured, distributed, sold, or offered for sale a menstrual product in a single product line of the same brand, product type, size, and absorbency that contains regulated PFAS.
- A subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of these provisions.
- Require a manufacturer, upon the issuance of a notice of violation by DTSC, to publish the notice on its website and social media accounts, as specified.
- Authorize the department to adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing these provisions.
- Require DTSC to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
- Provide that a person or entity that violates any of these provisions is liable for a civil penalty not to exceed $125,000. A second and subsequent violation is punishable by a civil penalty not to exceed $125,000 per day for each subsequent violation.
- Provide that, in assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:
- The nature and extent of the violation.
- The number of, and severity of, the violations.
- The economic effect of the penalty on the violator.
- Whether the violator took good faith measures to comply with this chapter and when these measures were taken.
- The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
- Whether there were contributing environmental factors about which a reasonable person knew or should have known.
- An action may be brought by the Attorney General at the request of DTSC, a city attorney, a county counsel, or a city prosecutor in a city or city and county having a full-time city prosecutor.
- Require a prevailing plaintiff bringing an action to be awarded attorney’s fees and costs by the court.
- Specify that penalties collected above are to be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury.
- Provide that, in assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:
- Authorize the court to grant injunctive relief in any action brought pursuant to these provisions.
- Define various terms for these purposes.
Related Legislation:
AB 246 (Papan) would have prohibited, commencing January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain intentionally added PFAS, or, commencing January 1, 2027, concentrations of PFAS above 10 parts per million. This bill was vetoed by the Governor.
AB 727 (Weber) would have prohibited, beginning January 1, 2026, a person from manufacturing, selling, delivering, distributing, holding, or offering for sale, a cleaning product that contains intentionally-added PFAS or PFAS above a threshold. This bill was vetoed by the Governor.
AB 1423 (Schiavo) would have prohibited, commencing January 1, 2024, a public entity and certain educational institutions from purchasing or installing a covered surface that contains intentionally added PFAS or PFAS at a concentration at or above 1 ppm. This bill was vetoed by the Governor.
AB 1989 (C. Garcia, Chapter 272 Statutes of 2020) requires menstrual product manufacturers to disclose intentionally added chemicals included on a set of designated lists, as specified, on-label and online.
Staff Comments:
AB 246 (Papan, 2023), heard and passed out of this committee, was substantially similar to AB 2515. Ultimately, the bill was vetoed, with the governor writing, “Previously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions.” Unlike AB 246, which did not have an overseeing agency, AB 2515 would grant DTSC oversight, require the department to publish guidance as it relates to testing for PFAS in menstrual products, and authorize (but not require) DTSC to adopt regulations or guidance as necessary to implement, administer, or enforce the prohibition.
-- END --
Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: AB 2515 (Author:Papan)
Version: June 24, 2024
Hearing Date: July 2, 2024
Fiscal: Yes
Urgency: No
Consultant: AM
SUBJECT
Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
DIGEST
This bill prohibits, beginning January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS). The bill also prohibits, beginning January 1, 2027, a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contains, whether intentionally or unintentionally, concentrations of PFAS at or above 10 parts per million (ppm) as measured in total organic fluorine. The bill makes a violation of these provisions punishable by a civil penalty not to exceed $125,000 for a first violation, and $250,000 per day for a second and any other subsequent violation.
EXECUTIVE SUMMARY
PFAS are a large group of synthetic substances that have been widely used in industrial and consumer applications for their heat, water, and oil resistance properties since their invention in the 1930s. They are often referred to as “forever chemicals” due to the long time they take to break down. These chemicals are pervasive and have been found almost everywhere—indoor and outdoor environments, plants, food, soil, drinking water, wildlife, domestic animals, and in humans. Studies have shown that exposure to PFAS may be linked to hazardous health effects and that PFAS can be transferred through ingestion or touch. California has enacted several laws banning PFAS in various products, such as textiles and children’s products. This bill seeks to ban PFAS in menstrual products given the elevated exposure pathway of the products. This bill is substantially similar to AB 246 (Papan, 2023), which passed this Committee on a vote of 10 to 0, but was ultimately vetoed by Governor Newsom (see veto message below).
The bill is author sponsored and supported by numerous organizations, including local governments, water districts, and organizations that advocate for reproductive health and environmental protections. The bill is opposed unless amended by several associations representing manufacturers of menstrual products. The bill passed the Senate Environmental Quality Committee on a vote of 5 to 0.
PROPOSED CHANGES TO THE LAW
Existing law:
- Requires, pursuant to the Menstrual Products Right to Know Act of 2020, that a package containing menstrual products manufactured on or after January 1, 2023 for sale or distribution in the state to be labeled with all ingredients in the product by weight and this information is to be posted on the internet. (Health & Saf. Code § 111822 et. seq.)
- Prohibits, beginning January 1, 2022, a manufacturer of class B firefighting foam from manufacturing, or knowingly selling, offering for sale, distributing for sale, or distributing for use, and a person from using, class B firefighting foam containing intentionally added PFAS chemicals. (Health & Saf. Code § 13061(b)(1).)
- Prohibits, beginning on January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale in the state any new, not previously used, textile articles that contain intentionally added PFAS, or PFAS at or above 100 PPM, and on or after January 1, 2027, 50 PPM, as measured in total organic fluorine. (Health & Saf. Code § 108971.)
- Prohibits, commencing on January 1, 2023, a person from distributing, selling, or offering for sale in the state any food packaging that contains intentionally added PFAS or PFAS at or above 100 ppm, as measured in total organic fluorine. (Health & Saf. Code §109000.)
- Authorizes the State Water Resources Control Board (State Water Board) to order a public water system to monitor for PFAS; requires community water systems to report detections; and, where a detected level of these substances exceeds the response level, to take a water source out of use or provide a prescribed public notification. (Health & Saf. Code § 116378.)
- Requires the Department of Toxic Substances Control (DTSC) to adopt regulations to establish a process to identify and prioritize chemicals or chemical ingredients in consumer products that may be considered chemicals of concern, as specified. (Health & Saf. Code §25252.)
- Requires DTSC to adopt regulations to establish a process to evaluate chemicals of concern in consumer products, and their potential alternatives, to determine how to best limit exposure or to reduce the level of hazard posed by a chemical of concern. (Health & Saf. Code §25253(a).)
- Specifies, but does not limit, regulatory responses that DTSC can take following the completion of an alternatives analysis, ranging from no action, to a prohibition of the chemical in the product. (Health & Saf. Code § 25253.)
This bill:
- Prohibits, beginning January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual product that contains regulated PFAS, as defined.
- Prohibits, beginning January 1, 2027, a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual product that contains, whether intentionally or unintentionally, concentrations of PFAS at or above 10 parts per million (ppm).
- Authorizes DTSC to issue a notice of violation after all of the following occur:
- DTSC has tested a sufficient sample size, as determined by the department, of the menstrual product alleged to be in violation of this article and found the presence of regulated PFAS.
- The department has provided the manufacturer, via certified mail, written notice that does all of the following: (i) describes of the alleged violation, including the data suggesting the presence of regulated PFAS; and (ii) requires corrective action by the manufacturer to bring the subject menstrual product into compliance, if applicable.
- The department determines a violation of this article has occurred and the manufacturer has failed to respond to the notice provided pursuant to subdivision (a) and, if mandated by the department, has failed to take corrective or mitigating actions to bring the subject menstrual product into compliance.
- Provides that an initial violation is deemed to have occurred upon the issuance of an initial notice of violation, as described above, if DTSC finds that a person has manufactured, distributed, sold, or offered for sale a menstrual product in a single product line of the same brand, product type, size, and absorbency.
- A subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of these provisions.
- Requires a manufacturer, upon the issuance of a notice of violation by DTSC, to publish the notice on its website and social media accounts, as specified.
- Authorizes the department to adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing these provisions.
- Requires DTSC to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
- Provides that a person or entity that violates any of these provisions is liable for a civil penalty not to exceed $125,000. A second and subsequent violation is punishable by a civil penalty not to exceed $125,000 per day for each subsequent violation.
- An action may be brought by the Attorney General at the request of the Department of Toxic Substances Control (DTSC), a city attorney, a county counsel, or a city prosecutor in a city or city and county having a full-time city prosecutor.
- Requires a prevailing plaintiff bringing an action to be awarded attorney’s fees and costs by the court.
- Specifies that penalties collected above are to be deposited in the T.A.M.P.O.N. Act Fund, which is hereby created in the State Treasury.
- Authorizes the court to grant injunctive relief in any action brought pursuant to these provisions.
- Defines various terms for these purposes.
- “Department” means the Department of Toxic Substances Control.
- “Menstrual product” means a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
- “Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
- “Regulated perfluoroalkyl and polyfluoroalkyl substances” or “regulated PFAS” means either of the following:
- PFAS that a manufacturer has intentionally added to a product and that has a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product; or
- Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, as measured in total organic fluorine.
COMMENTS
- Stated need for the bill
The author writes:
These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAs in menstrual products contributes to existing to gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
AB 2515 takes a critical step towards protecting women’s health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California’s pursuit for gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women’s health must be prioritized over the use of these unnecessary chemicals. It’s past time to protect women and our environment.”
- This bill is substantially similar to AB 246 (Papan, 2023)
This bill is substantially similar to AB 246 (Papan, 2023). The main differences are that this bill: (1) provides for oversight of these provisions by DTSC and authorizes DTSC to issue a notice of violation; (2) modifies the civil penalty amounts; (3) specifies when an initial violation is deemed to have occurred; (4) authorizes a court to grant injunctive relief; (5) does not contain language regarding a retailer not being liable if they have a certificate of compliance from the manufacturer and relied upon it in good faith; and (6) authorizes a prevailing plaintiff to be awarded attorney’s fees and costs by the court.
AB 246 was vetoed by Governor Newsom, along with two other single-product chemical ban bills:
This is one of three single-product chemical bans passed by the Legislature this year that attempt to address serious concerns with the presence of PFAS in consumer products. These bills do not identify or require any regulatory agency to determine compliance with, or enforce, the proposed statute.
While I strongly support the author's intent and have signed similar legislation in the past, I am concerned that this bill falls short of providing enhanced protection to California consumers due to lack of regulatory oversight. Previously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions.
In order to instill consumer confidence and effectively address public health and environmental concerns, I am directing the Department of Toxic Substances Control to engage with the author and the Legislature and consider alternative approaches to regulating the use of these harmful chemicals in consumer products.
- Bill bans PFAS in menstrual products
This bill was first heard by the Senate Environmental Quality Committee, which has primary jurisdiction over a majority of the provisions in this bill, including, but not limited to, the effects of PFAS on the environment and human health, the level of PFAS that is acceptable in menstrual products, how PFAS should be measured under the bill’s provisions, and the existing and future testing capabilities for PFAS. As such this analysis will focus on the provisions of this bill in the primary jurisdiction of this Committee, mainly the enforcement mechanism of the bill through the imposition of civil penalties. For a detailed analysis of PFAS and the environmental effects see the Senate Environmental Quality Committee analysis of this bill.[1]
This bill intends to address the issue of PFAS in menstrual products in two ways. First, it prohibits a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain intentionally added PFAS beginning January 1, 2025. Second, the bill prohibits, beginning January 1, 2027, a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain concentrations of PFAS at or above 10 parts per million (ppm), regardless if intentionally or unintentionally added.
- PFAS in menstrual products
The Senate Environmental Quality Committee explains that “[e]xposure to PFAS through menstrual products is particularly concerning because the vagina is an extremely vascular area and dermal exposure in the vaginal area is often higher than other places of the body” and “people using menstrual products are of reproductive age, thus exposure could potentially impact unborn children, as well as the person using the product.”[2] That Committee states that according to DTSC, “all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations.[3] The Committee analysis further noted that:
According to the US EPA, current peer-reviewed scientific studies have shown that exposure to certain levels of PFAS may lead to: reproductive effects such as decreased fertility or increased high blood pressure in pregnant women; developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations, or behavioral changes; increased risk of some cancers, including prostate, kidney, and testicular cancers; reduced ability of the body’s immune system to fight infections, including reduced vaccine response; interference with the body’s natural hormones; and, increased cholesterol levels and/or risk of obesity.[4]
In regards the evidence provided about the existence of PFAS in menstrual products, the Senate Environmental Quality Committee stated:
To illustrate the prevalence of PFAS in menstrual products, the author of the bill points to tests on menstrual products commissioned by the consumer watchdog site, Mamavation, and Environmental Health News. The tests for this study were conducted at US EPA-certified laboratories between 2020 and 2022 and detected organic fluorine, a marker for PFAS, in several menstrual products. The study found PFAS at concentrations ranging from 19 to 28 ppm in 22% of 23 tested tampon products. Of 46 sanitary pads, panty liners, and incontinence pads tested, 48% showed concentrations ranging from 11 to 154 ppm. Additional tests of period underwear products found that 65% had PFAS at concentrations ranging from 10 to 940 ppm. Detections of PFAS at concentrations greater than 3,000 ppm in period underwear had previously led to a high-profile lawsuit against the manufacturer, which was settled in 2023.[5]
- California has a long history of regulating PFAS in consumer products and is not alone in regulating these “forever chemicals”
The Legislature has enacted numerous bills addressing the issue of PFAS at different levels across various products—see the Prior Legislation section, below. AB 1817 (Ting, Ch. 762, Stat. 2022) has a threshold of 50 PPM for unintentionally added PFAS in textiles. This bill would be the first in this state, and possibly the country to bans on unintentionally added PFAS in a product at the level of 10 PPM. California is not the only state concerned with PFAS, as 195 new bills have been over the past two years introduced in dozens of state legislatures across the country seeking to ban PFAS in an expanding list of products.[6] Last year, the European Union (EU), proposed an across-the-board ban on the use of PFAS that, if adopted, would likely become effective in 2027—the same year that the ban on the unintentional level of PFAS at 10 ppm would go into effect under this bill. However, the proposal is in preliminary stages and received more than 5,600 comments from over 4,400 organizations, companies, and individuals during the public comment period.[7] These comments are being reviewed by European Chemical Agency’s (ECHA)’s committees for Risk Assessment and Socio-Economic Analysis, with an opinion on the comments and proposal expected to be published sometime this year.[8] A final decision will then be shared by the European Commission in 2025. If the proposal of an across-the-board PFAS ban is accepted by the EU, there will be an 18-month transition period; however, five and 12-year derogations could be granted for specific products or industries where there is significant evidence to prove viable alternatives do not exist.[9]
- Enforcement mechanism under the bill
This bill provides for enforcement through civil liability. A violation of these provisions makes a person liable for a civil penalty not to exceed $125,000 for a first violation, and not to exceed $250,000 for each subsequent violation. The bill provides that an initial violation is deemed to have occurred upon the issuance of an initial notice of violation, by DTSC and where DTSC finds that a menstrual product contains regulated PFAS using a sufficient sample size, as determined by DTSC, of a single product line of the same brand, product type, size, and absorbency, as applicable. A subsequent violation is deemed to have occurred upon the continued manufacture, distribution, sale, or offer for sale, as applicable, of the menstrual product in violation of these provisions after an initial violation has occurred. The bill authorizes an action to be brought by the Attorney General at the request of DTSC, a city attorney, a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
The bill also provides that DTSC may issue a notice of violation after all of the following occur:
- DTSC has tested a sufficient sample size, as determined by the department, of the menstrual product alleged to be in violation of this article and found the presence of regulated PFAS.
- DTSC has provided the manufacturer, via certified mail, written notice that does all of the following: (i) describes of the alleged violation, including the data suggesting the presence of regulated PEAS; and (ii) requires corrective action by the manufacturer to bring the subject menstrual product into compliance, if applicable.
- DTSC provides the manufacturer with a 45-day period to respond in writing to provide information regarding the alleged violation, including, but not limited to, whether an exception applies and any mitigating or corrective action that the manufacturer has taken.
- DTSC determines a violation of this article has occurred and the manufacturer has failed to respond to the notice provided and, if mandated by DTSC, has failed to take corrective or mitigating actions to bring the subject menstrual product into compliance.
Under the bill, a manufacturer, upon the issuance of a notice of violation by DTSC, is required to publish the notice on its website and social media accounts, including the product testing level, the brand, the product type, and any relevant lot or stock-keeping unit numbers. The 45-day period to respond in writing to DTSC under this bill states that the manufacturer can provide information regarding mitigating and corrective action and whether any exceptions apply. It is unclear what the purpose of this provision is, as the bill does not include any exceptions to the 10 PPM limit for PFAS. The opposition has asked that an exception to the 10 PPM limit be included in the bill for technically unavoidable trace quantities of PFAS that occur from impurities of natural or synthetic ingredients, the manufacturing process, storage, or mitigation from packaging. Some notice of violation provisions provide an opportunity for the violating entity to come into compliance before liability is incurred. (see Pub. Res. Code §§ 2774.1, 44104 & 45010.) It is unclear from the face of the bill if it is the intent of the author to provide an opportunity for the manufacturer to avoid liability by complying with corrective or mitigating actions as required by DTSC. The author may wish to clarify this as the bill moves through the Legislative process.
- Notice provision implicates the First Amendment
The notice prescribed by this bill implicates the First Amendment because whenever government requires a business to make disclosures, it raises potential First Amendment concerns as a form of “compelled speech.” The First Amendment prevents the government from compelling speech, just as it prevents the government from restraining speech. However, courts have held that certain types of commercial speech—including state and federal statutes requiring disclosure of information that is useful to the consumer (food labeling requirements and prescription drug warnings)—have to meet a less exacting standard than efforts to regulate political or expressive speech. (Zauderer v. Office of Disciplinary Counsel of Supreme Court (1985) 471 U.S. 626, 651.) In Zauderer the court stated “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, [warnings] or [disclaimers] might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception.” (Ibid.) Generally, courts have struck down statutes as compelled speech only those disclosure requirements that force a person or entity to directly or indirectly endorse positions or ideas to which the person or business objects; create a false or unwanted association with a group, movement, or set of ideas; or force the person or entity to support a group or position with which it disagrees. (See, e.g., West Virginia Board of Education v. Barnette (1943) 319 U.S. 624; Woolley v. Maryland (1977) 430 U.S. 795; United States v. United Foods (2001) 533 U.S. 405; Boy Scouts of American v. Dale (2000) 530 U.S. 533; National Institute of Family and Life Advocates v. Becerra (2018) 138 S. Ct. 2361.)
However, states do not have unconstrained authority to prescribe commercial speech, unrestrained by the First Amendment. Two requirements in particular are relevant to this bill. First, the U.S. Supreme Court has held that the content of any compelled disclosure must be limited to “purely factual and uncontroversial information….” (Zauderer, supra, 471 U.S. at 651.) The second requirement is that the speech not be “unjustified or unduly burdensome.” (Am. Bev. Ass'n v. City & Cty. of San Francisco (9th Cir. 2019) 916 F.3d 749, 756-7 [striking down San Francisco’s Sugar-Sweetened Beverage Warning Ordinance].) It is unclear if the notice requirement in the bill would run afoul of these principles. Posting that they have received a notice of violation from DTSC is arguably a purely factual statement. Whether requiring the posting on the manufacturer’s website and social media is unjustified or unduly burdensome is unclear.
- Opposition concerns
The bill’s opposition, made up of a coalition of associations representing manufacturers and retailers of menstrual products, is opposed unless amended to address their concerns with the bill. The opposition has no issue with the ban on intentionally added PFAS and have stated that none of their members intentionally add PFAS to the menstrual products they manufacture. They claim that PFAS chemicals are ubiquitous in the environment and can be present in natural or synthetic ingredients, recycled content, manufacturing processes and equipment, and potentially through the storage of the product and, therefore, unintentional PFAS contamination may extend beyond what a manufacturer can control—especially at the 10 PPM level. They argue that it is inequitable to be held liable for technically unavoidable trace quantities of PFAS that occur from impurities of natural or synthetic ingredients, the manufacturing process, storage, or mitigation from packaging. They also note that the bill specifically prohibits the sale, manufacturing, distribution, selling, or offering for sale in this state any menstrual product that contains regulated PFAS, and that if they cannot eliminate technically unavoidable trace quantities of PFAS in a product they will be forced to stop selling them in the state. They say this could greatly impact the availability of menstrual products in the state.
They also state that requiring manufacturers to post a notice of violation on their website and social media is deeply problematic and they want this language stricken from the bill. They argue this is unprecedented and could potentially run afoul of the First Amendment as compelled speech (see Comment 5), above. They are also concerned about any public notice being fodder for litigation pointing to a class action lawsuit filed against BIC after it disclosed its intentional use of PFAS in razors it manufactures to the Maine Department of Environmental Protection pursuant to a Maine law. (Butler & Pai v. BIC USA, INC., No. 4:24-cv-02955 (N.D. Cal.)). Another example is a class action lawsuit that was filed in March 2022 against Clorox’s Burt Bees brands for falsely advertising their products as “natural” when they contained PFAS. (Spindel v. Burt Bees, Inc. et. al, No. 3:22-cv-01928 (N.D. Cal.)).
They also express issue with the amount of the civil penalties in relation to the way a violation is defined—single product line of the same brand, product type, size, and absorbency that contains regulated PFAS. They either want the penalties lowered to what they were previously in the bill before recent amendments, which were $5,000 a day for a first violation and $10,000 per day for a second and any subsequent violation, or would like the scope of the violation changed to not be so broad.
- Statements in support
The California Water Association writes in support, stating:
US EPA has determined that exposure to PFAS/PFOS can lead to adverse human health effects. CWA’s members are actively working to remove PFAS in the drinking water of communities throughout California. This bill will eliminate PFAS containing products, thereby reducing the opportunity for drinking water and ground water contamination.
The American College of Obstetricians and Gynecologists District IX writes in support, stating:
Exposure to toxic chemicals can have many harmful effects on health. These chemicals disrupt the body’s endocrine system, which makes hormones and sends them throughout your body. This means chemicals can affect many parts of your body, including your thyroid gland, brain, reproductive organs, and immune system. Chemicals can disrupt cells and contribute to cancer.
Since the 1990s, we’ve called substances that have these harmful effects on the body “endocrine disruptors.” There are many different types of endocrine disruptors, including lead and chemicals called parabens, phthalates, and PFAS, which are addressed in this bill. PFAS are widely used substances that break down very slowly, earning them the name “forever chemicals.” This makes them especially harmful to our health.
Given the harmful effects of PFAS, California has been focused on removing or limiting PFAS from our products. AB 2515 makes another logical step to remove and limit PFAS from menstrual products.
- Statements in opposition
The bill is opposed by a coalition of various associations representing manufacturers and retailers of menstrual products, including the California Manufacturers and Technology Association and the California Chamber of Commerce write:
Our manufacturers do not intentionally add PFAS to serve any functional or technical effect in menstrual products. Our coalition supports the responsible production, use, and management of fluorinated substances, including regulatory requirements that protect human health and the environment. Given menstrual products are an essential product for women’s health, our coalition is supportive of the policy direction in AB 2515.
Unfortunately, AB 2515 creates a framework that punishes manufacturers that are NOT intentionally adding PFAS to menstrual products by extending expansive liabilities for the unintentional presence of PFAS chemicals, at or above 10 PPM. The challenge of unintentional PFAS contamination is that it may exist beyond what a manufacturer can control. PFAS are ubiquitous, as they are detected in air emissions, wastewater, soils, surface water, and groundwater and can also be found with no apparent source. As a result, contamination can occur at any point during the product’s life cycle – at the point of manufacturing and packaging, shipping and receiving, even the handling or use of the product by a consumer.
Manufacturers fully intend to comply with these prohibitions on intentionally added PFAS and understand the need for practical regulation in this space, however, unavoidable trace quantities of a chemical may be present and beyond the manufacturer’s control. Any enforcement must take into consideration the pervasiveness of PFAS and that manufacturers are not intentionally adding the chemical to these products. Enforcement should not act as a mechanism that limits product availability or drives consumer uncertainty as to product safety, but instead be justly focused on any bad actors who are intentionally adding PFAS chemicals to their respective products.
To this end, the reason AB 2515 has presented such a challenge for our coalition is because it requires the Legislature to determine how to impose a reasonable liability and enforcement structure on entities that are not adding the chemical in question into their products. Indeed, this is a novel challenge, as AB 2515 is the first bill in the country—and perhaps the world—seeking to impose liability on entities that are not adding the chemical in question in their products and that can do very little, if anything, to avoid its presence.
SUPPORT
American Association of University Women - California
American College of Obstetricians and Gynecologists District IX
Breast Cancer Prevention Partners
California Association of Sanitation Agencies
California Environmental Voters
California Health Coalition Advocacy
California Professional Firefighters
California Water Association
California Women’s Law Center
City of Roseville
City of Santa Rosa
Cleanearth4kids.org
Educate. Advocate.
Irvine Ranch Water District
Los Angeles County Sanitation Districts
Planned Parenthood Affiliates of California
Women’s Voices for the Earth
64 individuals
OPPOSITION
American Chemistry Council
American Forest and Paper Association
California Chamber of Commerce
California Manufacturers and Technology Association
Center for Baby and Adult Hygiene Products
Civil Justice Association of California
Consumer Brands Association
Consumer Healthcare Products Association
RELATED LEGISLATION
Pending Legislation: AB 347 (Ting, 2023) requires DTSC to adopt regulations for the enforcement of existing prohibitions on the use of PFAS and the use of specified chemicals in cookware and cosmetic products, as provided. AB 347 is currently pending in the Senate Health Committee.
Prior Legislation:
AB 246 (Papan, 2023) was substantially similar to this bill. AB 246 was vetoed by Governor Newsom. (see Comment 2), above, for veto message).
AB 727 (Weber, 2023) would have prohibited, beginning January 1, 2026, a person from manufacturing, selling, delivering, distributing, holding, or offering for sale, a cleaning product that contains intentionally-added PFAS or PFAS above a threshold. AB 727 was vetoed by the Governor for similar reasons as this bill.
AB 1423 (Schiavo) would have prohibited, commencing January 1, 2024, a public entity and certain educational institutions from purchasing or installing a covered surface that contains intentionally added PFAS or PFAS at a concentration at or above 1 ppm. AB 1423 was vetoed by the Governor for similar reasons as this bill.
AB 1817 (Ting, Ch. 762, Stat. 2022) prohibited, beginning January 1, 2024, a person from distributing, selling, or offering for sale in the state a textile article, as defined, that contains regulated PFAS, and requires a manufacturer to use the least toxic alternative when removing regulated PFAS in textile articles to comply with the provisions of the bill.
AB 2771 (Friedman, Ch. 804, Stats. 2022) prohibited, commencing January 1, 2025, a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added PFAS.
AB 1200 (Ting, Ch. 503, Stats. 2021) prohibited, commencing January 1, 2023, the sale of food packaging that contains PFAS; requires, commencing January 1, 2024, cookware manufacturers to label their product if it contains an intentionally added chemical on specified lists.
AB 652 (Freidman, Ch. 500, Stats. 2021) prohibited, on or after July 1, 2023, a person from selling or distributing in commerce any new juvenile products that contain PFAS.
SB 1044 (Allen, Ch. 308, Stats. 2020) prohibited the manufacture, sale, distribution, and use of firefighting foam containing intentionally added PFAS chemicals by January 1, 2022, with some exceptions, and required notification of the presence of PFAS in the protective equipment of firefighters.
SB 1056 (Portantino, 2020) would have required the State Water Board to establish an analytical laboratory method that can be used as a tool to assess the extent of PFAS contamination in drinking water, surface water, groundwater, and wastewater. This bill was held in the Senate Environmental Quality Committee.
AB 1989 (C. Garcia, Ch. 272, Stats. 2020) required menstrual product manufacturers to disclose intentionally added chemicals included on a set of designated lists, as specified, on-label and online.
AB 756 (Cristina Garcia, Ch. 162, Stats. 2019) authorized the State Water Board to order one or more public water systems to monitor for PFAS and required municipalities to notify consumers for PFAS detected above notification levels.
AB 958 (Ting, 2018) would have required a manufacturer of food packaging or cookware sold in the state to visibly disclose on an exterior location of the food packaging or cookware packaging a specified statement relating to the presence of PFAS in the product. This bill was held on the Senate Floor.
SB 1313 (Corbett, 2008) would have prohibited the manufacture, sale, or distribution of any food contact substance, as defined, which contains perfluorinated compounds, as defined, in any concentration exceeding 10 parts per billion. This bill was vetoed by then Governor Arnold Schwarzenegger whose veto message said, “I have signed AB 1879 (Feuer) and SB 509 (Simitian) which mark the beginning of California's historic Green Chemistry Initiative. It is within this process that chemicals like PFCs should be addressed.”
PRIOR VOTES
Senate Environmental Quality Committee (Ayes 5, Noes 0)
Assembly Floor (Ayes 61, Noes 1)
Assembly Appropriations Committee (Ayes 11, Noes 1)
Assembly Judiciary Committee (Ayes 10, Noes 1)
Assembly Environmental Safety and Toxic Materials Committee (Ayes 5, Noes 0)
**************
Sen. Environmental Quality Comm. analysis of AB 2515 (2023-24 reg. sess.) as amended June 17, 2024. ↑
Id. at 5. ↑
Id. at 4. ↑
Ibid. ↑
Ibid. ↑
Kimberly Kindy, States take matters into their own hands to ban ‘forever chemicals’, Washington Post (Jun 5, 2023), available at https://www.washingtonpost.com/politics/2023/06/05/forever-chemicals-state-bans-pfas/. ↑
ECHA receives more than 5 600 comments on PFAS restriction proposal, ECHA/NR/23/24, available at https://echa.europa.eu/-/echa-receives-5-600-comments-on-pfas-restriction-proposal. ↑
Miranda McLaren, Europe’s proposed PFAS ban: The next big thing in medical device design and supply, Medical Device Network, (Mar. 5, 2024), available at https://www.medicaldevice-network.com/sponsored/europes-proposed-pfas-ban-the-next-big-thing-in-medical-device-design-and-supply/. ↑
Ibid. ↑
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Allen, Chair
2023 - 2024 Regular
Bill No. | AB 2515 | Hearing Date: | 6/19/2024 |
Author: | Papan | ||
Version: | 6/6/2024 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | Holly Rudel | ||
SUBJECT: Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
DIGEST: Prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated per- or poly-fluoroalkyl substance (PFAS) as defined.
ANALYSIS:
Existing law:
- Under the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) (HSC § 25249.5 et seq.):
- Prohibits a person, in the course of doing business, from knowingly discharging or releasing a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water.
- Prohibits a person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.
- Requires the Governor to publish a list of chemicals known to cause cancer or reproductive toxicity and to annually revise the list. The Office of Environmental Health Hazard Assessment (OEHHA) has listed perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which are members of the PFAS class, as chemicals known to the state to cause developmental toxicity and cancer.
- Under the Safer Consumer Products (Green Chemistry) statutes (HSC § 25252 et seq.):
- Requires the Department of Toxic Substances Control (DTSC) to adopt regulations to establish a process to identify and prioritize chemicals or chemical ingredients in consumer products that may be considered chemicals of concern, as specified.
- Requires DTSC to adopt regulations to establish a process to evaluate chemicals of concern in consumer products, and their potential alternatives, to determine how to best limit exposure or to reduce the level of hazard posed by a chemical of concern.
- Specifies, but does not limit, regulatory responses that DTSC can take following the completion of an alternatives analysis, ranging from no action to a prohibition of the chemical in the product.
- The Menstrual Products Right to Know Act of 2020, requires a package containing menstrual products manufactured on or after January 1, 2023, for sale or distribution in the state to be labeled with all ingredients in the product by weight and this information to be posted on the internet.
This bill:
- Prohibits, commencing January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains intentionally added PFAS.
- Prohibits, commencing January 1, 2027, a person from manufacturing, distributing, selling, or offering for sale a menstrual product that has a total organic fluorine content at or above 10 parts per million (ppm).
- Authorizes the Department of Toxic Substances Control (DTSC) to adopt regulations or guidance as necessary to implement, administer, and enforce the prohibition.
- Authorizes DTSC, if it finds that a menstrual product contains regulated PFAS and it reasonably suspects that imminent harm would result from the continued sale of the product, to issue a cease and desist order to the manufacturer of the menstrual product.
- Authorizes any person to bring a civil action for any injury suffered as a result of a product sold in violation of the prohibitions in this bill. Authorizes exemplary damages to also be awarded in any action brought pursuant to the provisions of this bill.
- Authorizes actions to be brought pursuant to the provisions in this bill by the Attorney General in the name of the people of the state by the request of DTSC, or by any public prosecutor.
- Requires that moneys from penalties collected pursuant to the provisions of this bill be deposited in the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act Fund, which the bill creates in the State Treasury, and requires that the moneys deposited in the Fund be available, upon appropriation by the Legislature, for expenditure by DTSC exclusively to carry out the duties and responsibilities under the provisions of this bill.
Background
- Perfluoroalkyl and polyfluoroalkyl substances (PFAS). Per- and poly-fluoroalkyl substances (PFAS) are a large group (nearly 15,000 according to the U. S. Environmental Protection Agency (U. S. EPA)) of synthetic substances that have been widely used in industrial and consumer applications for their heat, water, and oil resistance properties for over seven decades. As a result, PFAS are used extensively in a variety of products designed to be waterproof; grease, heat, stain resistant; or non-stick. Commercial applications span many sectors of the economy, including aerospace, apparel, automotive, building and construction, pharmaceuticals, medical devices, paints, electronics, semiconductors, energy, oil and gas exploration, first responder safety, firefighting foams, and health care.
Due to the strength and stability of the carbon-fluorine bond, PFAS are long-lasting chemicals that are exceedingly difficult to destroy, making them highly persistent in the environment and resulting in their classification as “forever chemicals.” PFAS can migrate into the soil, water, and air at all stages of their lifecycle, from production, to use, to disposal; many scientists argue that PFAS should be regulated as a class (rather than based only on use-phase risk) because of these life cycle impacts. Because of their ubiquity and persistence in the environment, many PFAS are found in indoor and outdoor environments, plants, soil, food, drinking water, wildlife, companion animals, production animals, and humans at locations across the nation and around the globe.
- Risks of PFAS. Simply defined, risk is a function of hazard and exposure. With the high chance for exposure and substantial hazard traits, PFAS pose high risks to human, environmental, and animal health. PFAS exposure occurs mainly through ingestion of contaminated food or liquids. Exposure can also occur through inhalation of indoor air or contact with contaminated media. PFAS can be transferred from mother to child during pregnancy and breastfeeding. PFAS remains in the body for a long time, so as people continue to be exposed to PFAS, the PFAS levels in their bodies may accumulate.
According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations. Several PFAS bioaccumulate significantly in animals or plants and emerging evidence points to their phytotoxicity, aquatic toxicity, and terrestrial ecotoxicity. DTSC also contends that exposure to PFAS can lead to adverse health outcomes in humans. According to the US EPA, current peer-reviewed scientific studies have shown that exposure to certain levels of PFAS may lead to: reproductive effects such as decreased fertility or increased high blood pressure in pregnant women; developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations, or behavioral changes; increased risk of some cancers, including prostate, kidney, and testicular cancers; reduced ability of the body’s immune system to fight infections, including reduced vaccine response; interference with the body’s natural hormones; and, increased cholesterol levels and/or risk of obesity. PFAS can cause these health harms at extremely low levels; California and the EPA warn of the health harms for some PFAS in the parts per trillion range (the equivalent of one drop of water in 20 Olympic-sized swimming pools).
- PFAS in menstrual products. People who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. In menstrual products, PFAS can help make the material more absorbent and more stain-resistant. PFAS can be found in the raw materials used during a variety of steps throughout the manufacturing process.
To illustrate the prevalence of PFAS in menstrual products, the author of the bill points to tests on menstrual products commissioned by the consumer watchdog site, Mamavation, and Environmental Health News. The tests for this study were conducted at US EPA-certified laboratories between 2020 and 2022 and detected organic fluorine, a marker for PFAS, in several menstrual products. The study found PFAS at concentrations ranging from 19 to 28 ppm in 22% of 23 tested tampon products. Of 46 sanitary pads, panty liners, and incontinence pads tested, 48% showed concentrations ranging from 11 to 154 ppm. Additional tests of period underwear products found that 65% had PFAS at concentrations ranging from 10 to 940 ppm. Detections of PFAS at concentrations greater than 3,000 ppm in period underwear had previously led to a high-profile lawsuit against the manufacturer, which was settled in 2023.
Exposure to PFAS through menstrual products is particularly concerning because the vagina is an extremely vascular area and dermal exposure in the vaginal area is often higher than in other places of the body. Additionally, people using menstrual products are of reproductive age, and because PFAS are endocrine-disrupting chemicals, evidence has suggested that overall PFAS exposure could potentially impact unborn children, as well as the person using the product. Some scientists are concerned about the effects of PFAS during phases when the body is especially vulnerable, such as when someone gets their first period, is pregnant, or is in menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
Comments
- Purpose of Bill. According to the author, “These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAs in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
“AB 2515 takes a critical step towards protecting women’s health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California’s pursuit of gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean, and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women’s health must be prioritized over the use of these unnecessary chemicals. It’s past time to protect women and our environment.”
- PFAS concentration thresholds. This bill prohibits intentionally added PFAS by January 1, 2025, and sets a 10 ppm threshold for any PFAS in a product by January 1, 2027. Such a threshold may be warranted because determining whether PFAS were intentionally added in the manufacturing of a product can be a challenge when taking enforcement action. Furthermore, the health impacts from exposure to PFAS are the same, whether it was intentionally added or not. The author argues that manufacturers should be responsible for monitoring the entirety of the production line to ensure these products do not contain PFAS and taking corrective action if it turns out they do.
Setting a concentration threshold can protect public health. There is no concentration of PFAS that has been proven safe, and as long-lasting chemicals, they build up in the human body and the environment over time. PFAS in different types of products may be of greater concern than others depending on how likely the chemicals are to enter the body. A menstrual product containing PFAS likely poses a more acute health risk than, for example, a jacket containing PFAS. It is for this reason that the threshold established in AB 2515 (10 ppm) is lower than for textiles (50 ppm by January 1, 2027). It bears noting that PFAS in menstrual products represents an exposure route only for those who menstruate; this highlights the inequitable nature of the exposure. These persistent, bioaccumulative compounds have been associated with serious health impacts like cancer, thyroid disease, and developmental issues. However, only those who menstruate face exposures from this particular product category. Given this and the fact that these products come into direct contact with a sensitive area of the body, it seems reasonable to establish stringent, health-protective standards.
Opponents to the bill raise concerns that the enforcement mechanism laid out in AB 2515 is too punitive for manufacturers who are not intentionally adding PFAS in their product. They contend that unintentional PFAS contamination may exist beyond what a manufacturer can control, and even good-faith efforts to mitigate PFAS contamination, manufacturers can still have action taken against them. Though they don’t take issue with the threshold level itself, they contend that the enforcement model laid out in the bill is too stringent in treating violations from intentionally-added PFAS and trace PFAS contaminanation the same.
- Have we seen this before? AB 246 (Papan, 2023), heard and passed out of this committee, was substantially similar to AB 2515. Ultimately, the bill was vetoed, with the governor writing, “Previously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions.” Unlike AB 246, which did not have an overseeing agency, AB 2515 grants DTSC oversight, requires the department to publish guidance as it relates to testing for PFAS in menstrual products, and authorizes (but does not require) them to adopt regulations or guidance as necessary to implement, administer, or enforce the prohibition. Of note, the timelines found in this bill (a prohibition of intentionally-added PFAS by 2025, and a 10 ppm threshold by 2027), have not been updated from AB 246. Going forward, the author may wish to consider moving the enactment of this prohibition by one year.
- Enforcement provisions. In addition to the enforcement authority conferred upon DTSC, AB 2515 authorizes any person to bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of the prohibitions in this bill; authorizes exemplary damages to also be awarded in any action brought pursuant to the provisions of this bill; provides for specified civil penalties; authorizes the court to grant injunctive relief in any action brought pursuant to the provisions of this bill; authorizes specified public attorneys to take actions to enforce the provisions in this bill; and requires that a prevailing plaintiff bringing an action pursuant to the provisions of this bill be awarded attorney’s fees and costs by the court. These enforcement authorities, which have raised concerns from opposition groups (detailed more in Comment 2), will be analyzed further by the Senate Judiciary Committee.
Related/Prior Legislation
AB 246 (Papan) would have prohibited, commencing January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale in the state any menstrual products that contain intentionally added PFAS, or, commencing January 1, 2027, concentrations of PFAS above 10 parts per million. This bill was vetoed by the Governor.
AB 727 (Weber) would have prohibited, beginning January 1, 2026, a person from manufacturing, selling, delivering, distributing, holding, or offering for sale, a cleaning product that contains intentionally-added PFAS or PFAS above a threshold. This bill was vetoed by the Governor.
AB 1423 (Schiavo) would have prohibited, commencing January 1, 2024, a public entity and certain educational institutions from purchasing or installing a covered surface that contains intentionally added PFAS or PFAS at a concentration at or above 1 ppm. This bill was vetoed by the Governor.
AB 1989 (C. Garcia, Chapter 272 Statutes of 2020) requires menstrual product manufacturers to disclose intentionally added chemicals included on a set of designated lists, as specified, on-label and online.
DOUBLE REFERRAL:
If this measure is approved by the Senate Environmental Quality Committee, the do pass motion must include the action to re-refer the bill to the Senate Judiciary Committee.
SOURCE:
Author
SUPPORT:
A Voice for Choice Advocacy
American College of Obstetricians and Gynecologists District Ix
Breast Cancer Prevention Partners
California Professional Firefighters
California Water Association
City of Santa Rosa
Cleanearth4kids.org
Educate. Advocate.
Los Angeles County Sanitation Districts
Planned Parenthood Affiliates of California
OPPOSITION:
American Chemistry Council
American Forest & Paper Association
California Chamber of Commerce
California Manufacturers and Technology Association
Center for Baby and Adult Hygiene Products
Civil Justice Association of California
Consumer Brands Association
Consumer Healthcare Products Association
ARGUMENTS IN SUPPORT:
According to the Breast Cancer Prevention Partners, “PFAS are a class of approximately 14,000 man-made chemicals used for a wide range of purposes, including in menstrual products. PFAS are called “forever” chemicals because they are highly persistent and mobile in the environment, making them both difficult and expensive to remediate. They also accumulate in the environment and our bodies. Virtually all Americans and Californians have PFAS in their bodies. PFAS have been linked to severe health problems, including but not limited to breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, harm to developing infants and children, and immune system disruption. Indeed, the International Federation of Obstetrics and Gynecology (FIGO) has called for phasing out unnecessary uses of PFAS.
“PFAS are released into the environment when products containing them,
including menstrual products, are manufactured, used, and disposed of.
Californians are exposed to PFAS through products, water, air, and food.
“PFAS in menstrual products is particularly concerning considering these products
are intended for extended contact with the bodies of women and girls. California
has already banned the use of PFAS in textiles, food packaging, juvenile products,
firefighting foam, and cosmetics. Banning PFAS in menstrual products is an urgent
next step to eliminate the unnecessary and avoidable presence of these toxic
chemicals.”
ARGUMENTS IN OPPOSITION:
According to a coalition of industry members, “Unfortunately, AB 2515 creates a framework that punishes manufacturers that are NOT intentionally adding PFAS to menstrual products by extending expansive liabilities for the unintentional presence of PFAS chemicals, at or above 10 PPM. The challenge of unintentional PFAS contamination is that it may exist beyond what a manufacturer can control. PFAS are ubiquitous, as they are detected in air emissions, wastewater, soils, surface water, and groundwater and can also be found with no apparent source. As a result, contamination can occur at any point during the product’s life cycle – at the point of manufacturing and packaging, shipping and receiving, even the handling or use of the product by a consumer.
“Manufacturers fully intend to comply with these prohibitions on intentionally added PFAS and understand the need for practical regulation in this space, however, unavoidable trace quantities of a chemical may be present and beyond the manufacturer’s control. Any enforcement must take into consideration the pervasiveness of PFAS and that manufacturers are not intentionally adding the chemical to these products. Enforcement should not act as a mechanism that limits product availability or drives consumer uncertainty as to product safety, but instead be justly focused on any bad actors who are intentionally adding PFAS chemicals to their respective products.”
Positions reflect letters received by noon one week prior to the hearing.
-- END --
ASSEMBLY THIRD READING
ATR Bill Id:AB 2515
Author:(Papan)
As Amended Ver:April 4, 2024
Majority vote
SUMMARY
Prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated perfluoroalkyl or polyfluoroalkyl substances (PFAS), as defined.
Major Provisions
- Defines "menstrual product" as a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
- Defines "regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS" as either of the following:
- Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product, as specified; or,
- Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million (PPM), as measured in total organic fluorine.
- Authorizes the Department of Toxic Substances Control (DTSC) to adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing the provisions of the bill.
- Requires DTSC to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products, and exempts that guidance from the requirements of the Administrative Procedure Act.
- Prohibits a person from manufacturing, distributing, selling, or offering for sale in the state a menstrual product that contains regulated PFAS.
- Authorizes DTSC, if it finds that a menstrual product contains regulated PFAS and it reasonably suspects that imminent harm would result from the continued sale of the product, to issue a cease and desist order to the manufacturer of the menstrual product.
- Authorizes any person to bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of the prohibitions in this bill. Authorizes exemplary damages to also be awarded in any action brought pursuant to the provisions of this bill.
- Provides that a violation of the prohibitions in this bill is punishable by a civil penalty not to exceed five thousand dollars ($5,000) per day, and a second and subsequent violation is punishable by a civil penalty not to exceed ten thousand dollars ($10,000) per day.
- Authorizes the court to grant injunctive relief in any action brought pursuant to the provisions of this bill.
- Authorizes actions to be brought pursuant to the provisions in this bill by the Attorney General in the name of the people of the state by the request of DTSC, by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
- Requires that moneys from penalties collected pursuant to the provisions of this bill be deposited in the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act Fund (Fund), which the bill creates in the State Treasury, and requires that the moneys deposited in the Fund be available, upon appropriation by the Legislature, for expenditure by DTSC exclusively to carry out the duties and responsibilities under the provisions of this bill.
COMMENTS
Perfluoroalkyl and polyfluoroalkyl substances (PFAS): PFAS are synthetic, highly fluorinated substances that have been widely used in industrial and consumer applications for their heat, water, and lipid resistance properties for more than seven decades. During production, use, and disposal, PFAS can migrate into the soil, water, and air. Some PFAS are volatile, and can be carried long distances through the air, leading to contamination of soil and groundwater far from the emission source. Researchers have found PFAS in indoor and outdoor environments, plants, soil, food, drinking water, wildlife, companion animals, production animals, and humans at locations across the nation and around the globe. PFAS are extremely persistent and degrade very slowly over time, which has resulted in their accumulation in the environment since the onset of their production in the late 1940s. Currently, nearly 15,000 PFAS chemicals are included in the chemicals database CompTox, which is maintained by the United States Environmental Protection Agency (US EPA).
Exposure to PFAS: The main route of exposure to PFAS is through ingestion of contaminated food or liquid (accounting for up to half of total exposure), through contact with consumer products, and through inhalation and ingestion of contaminated indoor air and dust. Dermal exposure is possible when people touch products treated with PFAS, such as carpets or clothing. Workers in industries that that manufacture, use, sell, or dispose of products with PFAS may additionally experience above average PFAS exposure levels. Exposure to PFAS in drinking water is also an escalating concern due to the persistence of PFAS chemicals in the environment and their tendency to accumulate in groundwater. Like humans, wildlife is exposed to PFAS by consuming contaminated water or food. Within aquatic food webs, PFAS are found to increase in concentration from ambient water to plankton and further up the food chain.
Hazard traits of PFAS: According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations. An intrinsic property of PFAS is the extreme environmental persistence of either the individual compounds or their degradation products or both, resulting in their classification as "forever chemicals." Most PFAS are mobile in environmental media such as air and water, and thus are widespread in living organisms and the environment.
Scientific studies have shown that exposure to some PFAS can lead to adverse health outcomes in humans and animals. If humans are exposed to PFAS through diet, drinking water, or inhalation, some of these chemicals remain in the body for a long time. As people continue to be exposed to PFAS, the PFAS levels in their bodies may increase to the point that they suffer adverse health effects. Current peer-reviewed scientific studies have shown that exposure to certain levels of PFAS may lead to: reproductive effects such as decreased fertility or increased high blood pressure in pregnant women; developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations, or behavioral changes; increased risk of some cancers, including prostate, kidney, and testicular cancers; reduced ability of the body's immune system to fight infections, including reduced vaccine response; interference with the body's natural hormones; and, increased cholesterol levels and/or risk of obesity. In addition to direct human health impacts, some PFAS may have high global warming potential. Also, several PFAS bioaccumulate significantly in animals or plants and emerging evidence points to their phytotoxicity, aquatic toxicity, and terrestrial ecotoxicity.
PFAS in menstrual products: People who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. To illustrate the prevalence of PFAS in menstrual products, the author of the bill points to tests on menstrual products commissioned by the consumer watchdog site, Mamavation, and Environmental Health News between 2020 and 2022, the tests detected organic fluorine, a marker for PFAS, in several menstrual products. For example, 22% of the 23 tampon products tested had indications of PFAS, including two products advertised as "organic." 48% of 46 different sanitary pads, panty liners, and incontinence pads tested had indications of PFAS, including several products marketed as "organic" and "natural." Finally, 65% of period underwear products tested, and 57% of the period underwear brands tested, had detectable levels of fluorine present.
Exposure to PFAS through menstrual products is particularly concerning because the vagina is an extremely vascular area and dermal exposure in the vaginal area is often higher than other places of the body. Additionally, people using menstrual products are of reproductive age, thus exposure could potentially impact unborn children, as well as the person using the product. Experts are particularly concerned about the effects of PFAS during phases when the body is especially vulnerable, such as when someone gets their first period or is pregnant or is in menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
This bill: This bill prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated PFAS, as defined.
According to the Author
"These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAS in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water… AB 2515 takes a critical step towards protecting women's health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California's pursuit for gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women's health must be prioritized over the use of these unnecessary chemicals. It's past time to protect women and our environment."
Arguments in Support
The American College of Obstetricians and Gynecologists District IX writes, "Exposure to toxic chemicals can have many harmful effects on health. These chemicals disrupt the body's endocrine system, which makes hormones and sends them throughout your body. This means chemicals can affect many parts of your body, including your thyroid gland, brain, reproductive organs, and immune system. Chemicals can disrupt cells and contribute to cancer… Since the 1990s, we've called substances that have these harmful effects on the body "endocrine disruptors." There are many different types of endocrine disruptors, including… PFAS... PFAS are widely used substances that break down very slowly, earning them the name "forever chemicals." This makes them especially harmful to our health... AB 2515 makes another logical step to remove and limit PFAS from menstrual products."
Los Angeles County Sanitation Districts writes in support, "AB 2515 would provide important protection from PFAS by controlling a potential source of this class of "forever chemicals" that have been shown to cause increased incidences of cancer and reproductive harm. In addition to the potential direct exposure to an individual, menstrual products containing PFAS are often flushed down the drain, or used products may be sent to solid waste facilities when disposed of in the trash. Additionally, landfill leachate (rainwater that filters through wastes in a landfill and is collected for proper management) is often discharged to the sewer and contributes to PFAS loadings at wastewater treatment facilities. When taken together with contributions from numerous other sources, these pathways can lead to ubiquitous low concentrations of PFAS in wastewater, which may be recycled or discharged to the ocean or other local waterways."
Arguments in Opposition
A coalition of opponents, including chemical and product manufacturers and the California Chamber of Commerce, writes, "…AB 2515 creates a framework that punishes manufacturers that are NOT intentionally adding PFAS to menstrual products by extending expansive liabilities for the unintentional presence of PFAS chemicals, at or above 10 PPM. The challenge of unintentional PFAS contamination is that it may exist beyond what a manufacturer can control. AB 2515 creates a brand-new private right of action (PRA)... and the ability to levy punitive damages. PRAs bring unintended consequences and increase frivolous litigation on California businesses… Punitive damages are generally warranted when a party's actions are malicious, intentional, or are grossly negligent. Punitive damages are structured to deter a party from repeating certain misconduct in the future. In the case of AB 2515, manufacturers are not intentionally adding PFAS or wishing to harm consumers. Manufacturers are responsibly not using these chemicals but will face lawsuits accusing them of malfeasance even though they have removed any intentional application of PFAS to the product… If the private right of action and punitive damages provisions in AB 2515 are removed from the bill, we believe the primary remaining issue is resolvable…. AB 2515 is not clear on what the scope of the violation would be if a single item were to be tested to contain levels above the specified threshold. Specifically, it would be helpful to understand whether, when a single tampon, pad or other individual item is tested, the intent of the language is that a detect over the threshold will constitute a violation on a per item basis, whether the violation would include any sales of that item (e.g., in various pack configurations), or something in between… Clarifying language, which our coalition provided to the author to resolve the issue and hope will be accepted, would be helpful so that companies are clear as to the scope of a violation."
FISCAL COMMENTS
According to the Assembly Appropriations Committee, DTSC estimates that, should this be bill enacted, it would incur ongoing annual costs of at least $1.5 million for workload related to compliance and enforcement, including 6.5 new positions. Additionally, there would be cost pressures of an unknown but potentially significant amount to the courts to adjudicate lawsuits filed by a person for any injury suffered as a result of a product sold in violation of this bill. As this bill creates a private right of action and authorizes specified public prosecutors to enforce violations through civil litigation, actual costs will depend on the number of lawsuits filed and the amount of court time needed to adjudicate each case.
VOTES
ASM ENVIRONMENTAL SAFETY AND TOXIC MATERIALS: 5-0-2
YES: Garcia, Connolly, McKinnor, Papan, Reyes
ABS, ABST OR NV: Hoover, Ta
ASM JUDICIARY: 10-1-1
YES: Kalra, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Waldron
NO: Dixon
ABS, ABST OR NV: Sanchez
ASM APPROPRIATIONS: 11-1-3
YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua
NO: Dixon
ABS, ABST OR NV: Sanchez, Jim Patterson, Ta
UPDATED
VERSION: April 4, 2024
CONSULTANT: Shannon McKinney / E.S. & T.M. / (916) 319-3965 FN: 0003013
Date of Hearing: May 1, 2024
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Buffy Wicks, Chair
ABPCA Bill Id:AB 2515
Author:(Papan) – As Amended Ver:April 4, 2024
Policy Committee: | Environmental Safety and Toxic Materials | Vote: | 5 - 0 |
Judiciary | 10 - 1 | ||
|
|
Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated perfluoroalkyl or polyfluoroalkyl substances (PFAS).
In addition, this bill, among other things:
- Requires the Department of Toxic Substances Control (DTSC) to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
- Authorizes DTSC to adopt regulations or guidance as necessary to implement, administer, and enforce this bill.
- Exempts DTSC’s actions pursuant to 1 and 2, above, from the Administrative Procedures Act.
- Authorizes DTSC to issue a cease and desist order to the manufacturer of a menstrual product if the department finds that a menstrual product contains regulated PFAS, and reasonably suspects that imminent harm would result from the continued sale of the product.
- Authorizes a person to bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of this bill. Authorizes a person prevailing in a civil action to be awarded exemplary damages.
- Authorizes the Attorney General in the name of the people of the state by the request of DTSC or other public prosecutors, as specified, to bring a civil action seeking penalties for a violation of this bill.
- Provides that a violation of this bill is punishable by a civil penalty not to exceed $5,000 per day for the first violation and $10,000 per day for subsequent violations. Provides that, in addition to these penalties, the public prosecutors authorized to enforce this bill may seek injunctive relief.
- Entitles a prevailing plaintiff bringing an action to be awarded attorney’s fees and costs by the court.
- Requires penalty monies be deposited in the T.A.M.P.O.N. Act Fund and be available, upon appropriation, for expenditure by DTSC exclusively for the support of the department in carrying out its duties and responsibilities under this bill.
FISCAL EFFECT:
1) DTSC estimates ongoing annual costs of at least $1.5 million for workload related to compliance and enforcement (Toxic Substances Control Account (TSCA)), including 6.5 new positions. DTSC notes it is unable to quantify the scope of the sampling, testing, and human health risk assessments needed to effectively implement this bill, and that the department’s actual costs could be higher that its initial estimate. Should the Legislature approve funding from TSCA, DTSC may need to increase the environmental fee. While the bill makes any penalty revenue deposited into the T.A.M.P.O.N. Act Fund available to DTSC, the department notes penalty revenue is generally insufficient to cover its costs.
2) Cost pressures (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to adjudicate lawsuits filed by a person for any injury suffered as a result of a product sold in violation of this bill. This bill creates a private right of action and authorizes specified public prosecutors to enforce violations through civil litigation. Actual costs will depend on the number of lawsuits filed and the amount of court time needed to adjudicate each case. It generally costs approximately $1,000 to operate a courtroom for one hour. If 10 suits are filed and each takes five days of court time to resolve, the resulting cost would be $400,000 for courtroom operation. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund.
The Governor’s 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund. According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.
COMMENTS:
1) Purpose. According to the author:
AB 2515 takes a critical step towards protecting women’s health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California’s pursuit for gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products.
2) Background. PFAS are a ubiquitous class of more than 9,000 synthetic chemicals that have been in use in a wide range of industrial and consumer products since the 1940s for their heat, water, and lipid resistance properties. PFAS are linked to a variety of health harms, such as cancer, endocrine disruption, developmental and reproductive toxicity, and immune dysregulation. These chemicals are harmful at extremely low doses; contaminate the air, soil, drinking water, plants, and wildlife during production, use and, disposal; and are extremely persistent in the environment. In fact, PFAS are commonly referred to as “forever chemicals” because they do not break down and instead bioaccumulate and persist in human and animal tissues.
The author notes that the presence of PFAS in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. The author cites a recent study, which found that 48% of sanitary pads, incontinence pads, and panty liners tested contained PFAS, as did 22% of tampons. Writing in support, the California Professional Firefighters notes: “These health and sanitary items can lead to extended and frequent exposure to these toxic substances over many years of use, leading to decades’ worth of unnecessary exposure when viable alternatives are available.” This bill prohibits the sale and distribution of menstrual products containing regulated PFAS, beginning with intentionally-added PFAS and then expanding to total PFAS over 10 parts per million.
Writing in opposition, a coalition of organizations objects to the inclusion in the bill of a private right of action and the ability to levy “punitive damages” against manufacturers of menstrual products:
Manufacturers fully intend to comply with these prohibitions on intentionally added PFAS and understand the need for practical regulation in this space, however, unavoidable trace quantities of a chemical may be present and beyond the manufacturer’s control. Any enforcement must take into consideration the pervasiveness of PFAS and that manufacturers are not intentionally adding the chemical to these products.
Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081
Date of Hearing: April 16, 2024
ASSEMBLY COMMITTEE ON JUDICIARY
Ash Kalra, Chair
ABPCA Bill Id:AB 2515
Author:(Papan) – As Amended Ver:April 4, 2024
SUBJECT: Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
KEY ISSUES:
- should the presence of PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES IN menstrual products be limited to 10 parts per million?
- Should the prohibition on PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCEs in menstrual products be enforced by government prosecutors and individuals who suffered direct harm from PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCEs?
SYNOPSIS
Perfluoroalkyl and polyfluoroalkyl substances, also known as PFAS, are volatile, highly fluorinated chemical compounds that have been used in a myriad of consumer and commercial products. Evidence suggests that exposure to PFAS can increase the rate of birth defects, developmental disorders, and certain types of cancers. Due to the products extensive use, background traces of PFAS are prevalent in the lived environment. As a result of background PFAS contamination, even if a product has moved away from intentionally using PFAS, the product can still be contaminated by the chemicals.
This bill seeks to limit the use of PFAS in menstrual products. The bill establishes a 10 parts per million maximum standard for the presence of PFAS in these products. The bill would direct the Department of Toxic Substances Control to adopt guidance on the implementation of this measure. The bill also proposes two means of enforcement. First, a person who is actually harmed by the presence of PFAS in menstrual products may bring a civil action to recover their damages stemming from the PFAS exposure, and in rare cases, may seek exemplary damages. This bill also vests public prosecutors with the ability to seek civil penalties against manufacturers whose products are found to violate the 10 parts per million standard.
This bill is supported by a coalition of medical professional, reproductive rights advocates, and water districts. The proponents note the dangers of PFAS exposure, particularly in products as sensitive as menstrual products, and the need to eliminate PFAS from the lived environment. This bill is opposed by a coalition of product manufacturers and other business organizations. The groups lament the private right of action and seek a better definition of violation for the government enforcement provisions of this measure. The Committee concedes the need for greater clarity surrounding what constitutes a violation related to civil penalties; however, the stakeholders continue to debate the proper scope of the definition, and the Department of Toxic Substances Control is almost certainly going to weigh in on the matter, as well. Given this dynamic, the Committee may wish to advance the measure to permit stakeholder discussions to continue on this topic. The measure was previously heard and approved by the Committee on Environmental Safety and Toxic Materials by a 5-0 vote.
SUMMARY: Prohibits the presence of perfluoroalkyl and polyfluoroalkyl (PFAS) substances in menstrual products at concentrations in excess of 10 parts per million. Specifically, this bill:
- Prohibits the manufacture, distribution, sales, or offer for sales in the state a menstrual product that contains regulated PFAS.
- Requires the Department of Toxic Substances Control to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
- Permits the Department of Toxic Substances Control to adopt regulations to implement this bill.
- Exempts the Department of Toxic Substances Control’s actions pursuant to 2) and 3) from the Administrative Procedures Act.
- Authorizes the Department of Toxic Substances Control to issue a cease and desist order to the manufacturer of a menstrual product if the Department finds that a menstrual product contains regulated PFAS, and reasonably suspects that imminent harm would result from the continued sale of the product.
- Authorizes a person to bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation.
- Authorizes a person prevailing in a civil action pursuant to 6) to receive exemplary damages.
- Authorizes the Attorney General in the name of the people of the state by the request of the Department of Toxic Substances Control, a city attorney, a county counsel, or a city prosecutor in a city or city and county having a full-time city prosecutor to bring a civil action seeking penalties for a violation of this bill.
- Provides that those seeking a civil penalty pursuant to 8) may seek a penalty not to exceed five thousand dollars ($5,000) per day for a first violation and ten thousand dollars ($10,000) per day for subsequent violations.
- Provides that, in addition to the penalties provided by 9), the public prosecutors authorized to enforce this bill pursuant to 8) may seek injunctive relief.
- Entitles a prevailing plaintiff bringing an action pursuant to 8) to be awarded attorney’s fees and costs by the court.
- Provides that any penalty money recovered in an action brought pursuant to 8) is to be deposited in the T.A.M.P.O.N. Act Fund, which is to be created in the State Treasury.
- Defines “menstrual product” as a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable;
- Defines “perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” as a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom;
- Defines “Regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS” as either:
- Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product; or
- Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million, as measured in total organic fluorine.
EXISTING LAW:
- Requires, commencing January 1, 2022, a person that sells firefighter personal protective equipment to provide a written notice to the purchaser if the firefighter personal protective equipment contains intentionally added PFAS chemicals. (Health and Safety Code Section 13029 (b)(1).)
- Prohibits, commencing January 1, 2022, a manufacturer of class B firefighting foam from manufacturing, or knowingly selling, offering for sale, distributing for sale, or distributing for use, and a person from using, class B firefighting foam containing intentionally added PFAS chemicals. (Health and Safety Code Section 13061 (b)(1).)
- Prohibits, on and after July 1, 2023, a person, including, but not limited to, a manufacturer, from selling or distributing in commerce in this state any new, not previously owned, juvenile product, as defined, that contains intentionally added PFAS or PFAS at or above 100 PPM, as measured in total organic fluorine. (Health and Safety Code Section 108946.)
- Prohibits, on or after January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale in the state any new, not previously used, textile articles that contain intentionally added PFAS, or PFAS at or above 100 PPM, and on or after January 1, 2027, 50 PPM, as measured in total organic fluorine. (Health and Safety Code Section 108971.)
- Prohibits, commencing January 1, 2025, a person or entity from manufacturing, selling, delivering, holding, or offering for sale, in commerce any cosmetic product that contains any specified intentionally added ingredients, including some PFAS chemicals. (Health and Safety Code Section 108980 (a).)
- Prohibits, commencing January 1, 2025, a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added PFAS. (Health and Safety Code Section 108981.5.)
- Prohibits, commencing January 1, 2023, a person from distributing, selling, or offering for sale in the state any food packaging that contains intentionally added PFAS or PFAS at or above 100 PPM, as measured in total organic fluorine. (Health and Safety Code Section 109000.)
- Authorizes the State Water Resources Control Board (State Water Board) to order a public water system to monitor for PFAS; requires community water systems to report detections; and, where a detected level of these substances exceeds the response level, to take a water source out of use or provide a prescribed public notification. (Health and Safety Code Section 116378.)
- Requires a package or box containing menstrual products that was manufactured on or after January 1, 2023, for sale or distribution in this state to have printed on the label a plain and conspicuous list of all intentionally added ingredients in the product. (Health and Safety Code Section 111822.2.)
- Provides that in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, a plaintiff may recover damages for the sake of example and by way of punishing the defendant. (Civil Code Section 3294 (a).)
- Defines the following for the purpose of 10):
- “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others;
- “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights; and
- “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civil Code Section 3294 (c).)
- Prohibits any state agency from issuing, utilizing, enforcing, or attempting to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to the Administrative Procedure Act. (Government Code Section 11340.5 (a).)
- Defines “regulation” for the purpose of the Administrative Procedure Act as every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure. (Government Code Section 11342.600.)
- Defines a “product liability action” as any action for injury or death caused by a product, except that the term does not include an action based on a manufacturing defect or breach of an express warranty. (Civil Code Section 1714.45 (c).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Recognizing the risks posed by PFAS, particularly PFAS in products used in sensitive areas of the body, this bill seeks to prohibit PFAS substances in menstrual products at concentrations in excess of 10 parts per million (PPM). The bill also adopts a civil penalty regime to enable public prosecutors to enforce parts of this measure, as well as a private right of action for those harmed by PFAS in menstrual products. In support of this measure, the author states:
These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAs in menstrual products contributes to existing to gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
AB 2515 takes a critical step towards protecting women’s health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California’s pursuit for gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women’s health must be prioritized over the use of these unnecessary chemicals. It’s past time to protect women and our environment.
The dangers of PFAS exposure. PFAS chemicals are frequently used in consumer products to boost the products ability to resist heat, water, and lipids. As a result PFAS is found in a litany of consumer products from carpets and furniture to non-stick cookware to consumer apparel and personal care products. At its root PFAS chemicals are highly fluorinated, volatile chemical substances. Not only are PFAS used in the above discussed consumer products, the chemicals are also used in oil and gas exploration, firefighting foam, and electronics to name just a few of PFAS’s industrial uses. As a result of the numerous uses of PFAS chemicals and the general volatility of the chemical compounds composing PFAS, the chemical is now widely dispersed throughout the lived environment. Even more troubling the chemicals take significant time to degrade, even when exposed to the elements.
As a result of the widespread proliferation of PFAS into the environment, humans can be exposed to these chemicals in numerous ways. First, and most obvious, would be exposure through the workplace or by using a consumer product containing PFAS. Secondly, PFAS exposure can occur as a result of eating food or consuming water that contains trace amounts of the chemical from soil or waterways. Because these chemicals can build up in the food chain, meats and fish products can contain especially high levels of these chemicals.
Due to PFAS ability to bio accumulate in the food chain and persist for years, exposure to the chemicals can have serious health impacts. In studies conducted by the United States Environmental Protection Agency, PFAS exposure has been demonstrated to result in birth defects, developmental delays, immune system suppression, cancer (notably kidney, prostate, and testicular cancer), interference with hormones, and increased risk of obesity and high cholesterol. (https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas.)
Due to the intimate nature of menstrual products, and their use in close proximity to the body, exposure to PFAS can be particularly harmful. More troublingly, recent studies have indicated that large percentages of menstrual products contain traces of PFAS. A 2022 study by Mamavation and Environmental Health News discovered that 48 percent of pads, 22 percent of tampons, and 65 percent of period underwear tested positive for the presence of PFAS. (Jeffery Kluger, PFAS ‘Forever Chemicals’ Are Turning Up in Menstrual Products. Here’s What You Need to Know, TIME Magazine (Feb. 9, 2023).) Unsurprisingly, studies are also now linking maternal PFAS exposure with fetal neurological developmental delays. (Webster et. al, Associations between Perfluoroalkylacids (PFASs )and maternal thyroid hormones in early pregnancy: A population-basedcohort study (2014) 133 Environmental Research 338.)
In response to these risks, the United States Environmental Protection Agency announced a “PFAS Strategic Roadmap” to adopt an agency wide approach to addressing PFAS contamination and is now undertaking rulemaking to generate additional oversight of PFAS production, exposure, and hazards nationwide. Additionally, since 2022, the Department of Toxic Substances Control has been seeking to better regulate PFAS in consumer products including upholstery, clothing, shoes, and carpeting. Similarly, the State Water Resources Control Board issued General Order DW 20240002DDW in March of 2024 directing local water agencies to begin monitoring for PFAS in water systems serving at risk disadvantaged communities.
This bill seeks to limit the presence of PFAS in menstrual products by prohibiting the intentional addition of PFAS to menstrual products, and imposing a 10 PPM cap on allowable traces of organic fluorine (a marker for PFAS) in these products to commence in 2027. The measure also directs the Department of Toxic Substances Control to develop guidance related to PFAS and permits the Department to enact any regulations necessary to implement this measure. Those regulations and guidance documents would be exempted from the Administrative Procedures Act.
Of primary relevance to this Committee, this bill adopts two methods to enforce the PFAS prohibition. First, this bill authorizes government enforcement of the measure. The bill authorizes the Attorney General, as well as city attorneys and county counsel, to seek civil penalties, ranging from five to ten thousand dollars per violation, for violations of this bill’s provisions. The bill also authorizes public prosecutors to seek injunctive relief. Secondly, this bill authorizes an individual harmed by PFAS present in menstrual products to file a private right of action to compensate them for the damages caused by the presence of toxic chemicals in menstrual products. The measure authorizes potential punitive damages, should they be warranted, in a private right of action.
The private right of action in this measure is limited to those actually harmed by PFAS exposure. Opposition to this measure, a coalition of consumer product producers, contend that this bill punishes producers who do not intentionally add PFAS to products and exposes these producers to potential punitive damages. As it relates to the governmental enforcement, as state regulators, permitting a regulatory agency to seek penalties for the presence of toxic chemicals is a fairly standard practice. While the opponents to this measure are correct that some PFAS contamination comes from background sources, state regulators are well within their right to try and force manufacturers to use improved manufacturing practices in order to reduce the presence of toxics in their products.
As it pertains to the private right of action, the remedies appear both appropriate and commensurate with existing law. First, existing California law authorizes product defect lawsuits for harm caused by defective consumer products. By creating a standalone action, limited to those who actually suffer harm as a result of PFAS exposure from menstrual products, this bill essentially establishes the 10 PPM standard as the duty of care owed to consumers by menstrual product manufacturers. As it relates to the punitive damages, existing law requires a showing of “oppression, fraud, or malice” by clear and convincing evidence. To the extent that product manufacturers do not add PFAS to menstrual products, as claimed by the opposition, it would be nearly impossible for a plaintiff to meet this standard if a menstrual product simply exceeded the 10 PPM standard through background PFAS exposure. Only if a menstrual product manufacturer intentionally added PFAS in contradiction of the prohibition in this bill would the “oppression, fraud, or malice” standard be met. Thus, while it is understandable that the opponents of this measure would prefer to eliminate all risk of punitive damages being imposed on manufacturers of menstrual products, given that the punitive damages would only be imposed on manufacturers who are adding PFAS to menstrual products and the manufacturers contend they are not adding PFAS to menstrual products, the damages provisions of this measure should not pose a significant legal threat to the menstrual products industry.
Ongoing discussions seek to determine what constitutes a violation of this bill. Recent amendments to this measure, taken in the Committee on Environmental Safety and Toxic Materials but developed with significant input from this Committee, significantly restructured the enforcement provisions of this measure. As noted, this bill contains both private and governmental enforcement. While the private right of action is focused on actual harm, the governmental enforcement language focuses on a “violation” of the standards in the bill. However, what defines a violation is still unclear. Due to the unique nature of how menstrual products are sold, a single use product sold within a larger package of the products, determining a violation can be difficult. For example, an individual tampon may have the presence of PFAS in excess of the 10 PPM standard but the remainder of the box it was sold with do not. In that case would the individual tampon be one violation or would the entire box consist of the violation? In a similar instance, if three tampons within a box of 100 tested in excess of the 10 PPM standard, that could be either three violations or one violation, depending on how the term were defined.
Discussions with stakeholders make it clear that differences remain as to how to properly define the term “violation.” While the author and opposition have been in discussions surrounding this language, the Department of Toxic Substances Control is also likely to have thoughts as to how their enforcement staff would prefer the language. Given that there are merits to each of the various approaches for defining a violation, and that all parties are committed to developing a definition, this Committee may not see a need to force one definition into the bill at this time, especially given that ongoing discussions would almost certainly amend that definition.
Given that the enforcement language now provides for clearly delineated causes of action and provides clear authority regarding who is authorized to file suit, the Committee may not see a need to amend the measure at this time.
As the bill progresses, Committee staff will continue to engage with stakeholders. The Committee reserves the ability to recall the measure should an agreement on a workable definition not be reached.
ARGUMENTS IN SUPPORT: This bill is supported by a coalition of reproductive rights advocates, water and sanitation districts, medical professionals, and first responders. In support of this bill the American College of Obstetricians and Gynecologists writes:
Exposure to toxic chemicals can have many harmful effects on health. These chemicals disrupt the body’s endocrine system, which makes hormones and sends them throughout your body. This means chemicals can affect many parts of your body, including your thyroid gland, brain, reproductive organs, and immune system. Chemicals can disrupt cells and contribute to cancer.
Since the 1990s, we’ve called substances that have these harmful effects on the body “endocrine disruptors.” There are many different types of endocrine disruptors, including lead and chemicals called parabens, phthalates, and PFAS, which are addressed in this bill. PFAS are widely used substances that break down very slowly, earning them the name “forever chemicals.” This makes them especially harmful to our health.
Given the harmful effects of PFAS, California has been focused on removing or limiting PFAS from our products. AB 2515 makes another logical step to remove and limit PFAS from menstrual products.
Additionally the California Water Association writes:
US EPA has determined that exposure to PFAS/PFOS can lead to adverse human health effects. CWA’s members are actively working to remove PFAS in the drinking water of communities throughout California. This bill will eliminate PFAS containing products, thereby reducing the opportunity for drinking water and ground water contamination
ARGUMENTS IN OPPOSITION: This measure is opposed by a coalition of business organizations and consumer product manufacturers. The coalition opposing this measure writes:
Our manufacturers do not intentionally add PFAS to serve any functional or technical effect in menstrual products. Our coalition supports the responsible production, use, and management of fluorinated substances, including regulatory requirements that protect human health and the environment. Given menstrual products are an essential product for women’s health, our coalition is supportive of the policy direction in AB 2515.
Unfortunately, AB 2515 creates a framework that punishes manufacturers that are NOT intentionally adding PFAS to menstrual products by extending expansive liabilities for the unintentional presence of PFAS chemicals, at or above 10 PPM. The challenge of unintentional PFAS contamination is that it may exist beyond what a manufacturer can control. PFAS are ubiquitous, as they are detected in air emissions, wastewater, soils, surface water, and groundwater and can also be found with no apparent source. As a result, contamination can occur at any point during the product’s life cycle – at the point of manufacturing and packaging, shipping and receiving, even the handling or use of the product by a consumer.
AB 2515 is not clear on what the scope of the violation would be if a single item were to be tested to contain levels above the specified threshold. Specifically, it would be helpful to understand whether, when a single tampon, pad or other individual item is tested, the intent of the language is that a detect over the threshold will constitute a violation on a per item basis, whether the violation would include any sales of that item (e.g., in various pack configurations), or something in between (e.g., if the item tested was in a 16-ct. pack, then the violation is any sales of that specific pack). Clarifying language, which our coalition provided to the author to resolve the issue and hope will be accepted, would be helpful so that companies are clear as to the scope of a violation.
REGISTERED SUPPORT / OPPOSITION:
Support
A Voice for Choice Advocacy
American College of Obstetricians and Gynecologists District IX
California Professional Firefighters
California Environmental Voters
California Water Association
California Women's Law Center
Cleanearth4kids.org
Educate. Advocate.
Los Angeles County Sanitation Districts
Orange County Sanitation District
Planned Parenthood Affiliates of California
Reproductive Freedom for All
One Individual
Opposition
American Chemistry Council
American Forest & Paper Association
California Chamber of Commerce
California Manufacturers & Technology Association
California Manufacturers and Technology Association
Center for Baby and Adult Hygiene Products
Civil Justice Association of California
Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334
Date of Hearing: April 9, 2024
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Eduardo Garcia, Chair
ABPCA Bill Id:AB 2515 (
Author:Papan) – As Amended Ver:April 4, 2024
SUBJECT: Menstrual products: perfluoroalkyl and polyfluoroalkyl substances (PFAS)
SUMMARY: Prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated perfluoroalkyl or polyfluoroalkyl substances (PFAS), as defined. Specifically, this bill:
- States that the provisions of the bill shall be known as, and may be cited as, the Take All Menstrual Product-PFAS Out Now (T.A.M.P.O.N.) Act.
- Defines "menstrual product" as a product used to collect menstruation and vaginal discharge, including, but not limited to, tampons, pads, sponges, menstruation underwear, disks, and menstrual cups, whether disposable or reusable.
- Defines "perfluoroalkyl and polyfluoroalkyl substances" or "PFAS" as a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
- Defines "regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS" as either of the following:
- Commencing January 1, 2025, PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product; or,
- Commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 parts per million (PPM), as measured in total organic fluorine.
- Authorizes the Department of Toxic Substances Control (DTSC) to adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing the provisions of the bill.
- Requires DTSC to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products.
- Exempts guidance on testing for the presence of regulated PFAS in menstrual products from the requirements of the Administrative Procedure Act.
- Prohibits a person from manufacturing, distributing, selling, or offering for sale in the state a menstrual product that contains regulated PFAS.
- Authorizes DTSC, if it finds that a menstrual product contains regulated PFAS and it reasonably suspects that imminent harm would result from the continued sale of the product, to issue a cease and desist order to the manufacturer of the menstrual product.
- Authorizes any person to bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of the prohibitions in this bill.
- Authorizes exemplary damages to also be awarded in any action brought pursuant to the provisions of this bill.
- Provides that a violation of the prohibitions in this bill is punishable by a civil penalty not to exceed five thousand dollars ($5,000) per day.
- Provides that a second and subsequent violation of the prohibitions in this bill is punishable by a civil penalty not to exceed ten thousand dollars ($10,000) per day.
- Authorizes the court to grant injunctive relief in any action brought pursuant to the provisions of this bill.
- Authorizes actions to be brought pursuant to the provisions in this bill by the Attorney General in the name of the people of the state by the request of DTSC, by a city attorney, by a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
- Requires that a prevailing plaintiff bringing an action pursuant to the provisions of this bill be awarded attorney’s fees and costs by the court.
- Requires that moneys from penalties collected pursuant to the provisions of this bill be deposited in the T.A.M.P.O.N. Act Fund (Fund), which the bill creates in the State Treasury.
- Requires that the moneys deposited in the Fund be available, upon appropriation by the Legislature, for expenditure by DTSC exclusively for the support of DTSC in carrying out the duties and responsibilities under the provisions of this bill.
EXISTING LAW:
- Requires, commencing January 1, 2022, a person that sells firefighter personal protective equipment to provide a written notice to the purchaser if the firefighter personal protective equipment contains intentionally added PFAS chemicals. (Health and Safety Code (HSC) § 13029 (b)(1))
- Prohibits, commencing January 1, 2022, a manufacturer of class B firefighting foam from manufacturing, or knowingly selling, offering for sale, distributing for sale, or distributing for use, and a person from using, class B firefighting foam containing intentionally added PFAS chemicals. (HSC § 13061 (b)(1))
- Prohibits, on and after July 1, 2023, a person, including, but not limited to, a manufacturer, from selling or distributing in commerce in this state any new, not previously owned, juvenile product, as defined, that contains intentionally added PFAS or PFAS at or above 100 ppm, as measured in total organic fluorine. (HSC § 108946)
- Prohibits, on or after January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale in the state any new, not previously used, textile articles that contain intentionally added PFAS, or PFAS at or above 100 PPM, and on or after January 1, 2027, 50 PPM, as measured in total organic fluorine. (HSC § 108971)
- Prohibits, commencing January 1, 2025, a person or entity from manufacturing, selling, delivering, holding, or offering for sale, in commerce any cosmetic product that contains any specified intentionally added ingredients, including some PFAS chemicals. (HSC § 108980 (a))
- Prohibits, commencing January 1, 2025, a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added PFAS. (HSC § 108981.5)
- Prohibits, commencing January 1, 2023, a person from distributing, selling, or offering for sale in the state any food packaging that contains intentionally added PFAS or PFAS at or above 100 ppm, as measured in total organic fluorine. (HSC § 109000)
- Authorizes the State Water Resources Control Board (State Water Board) to order a public water system to monitor for PFAS; requires community water systems to report detections; and, where a detected level of these substances exceeds the response level, to take a water source out of use or provide a prescribed public notification. (HSC § 116378)
- Requires a package or box containing menstrual products that was manufactured on or after January 1, 2023, for sale or distribution in this state to have printed on the label a plain and conspicuous list of all intentionally added ingredients in the product. (HSC § 111822.2)
Under the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65):
- Prohibits a person, in the course of doing business, from knowingly discharging or releasing a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water. (HSC § 25249.5)
- Prohibits a person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual. (HSC § 25249.6)
- Requires the Governor to publish a list of chemicals known to cause cancer or reproductive toxicity and to annually revise the list. The Office of Environmental Health Hazard Assessment (OEHHA) has listed perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which are members of the PFAS class, as chemicals known to the state to cause developmental toxicity. (HSC § 25249.8)
Under the Safer Consumer Products (Green Chemistry) statutes:
- Requires the DTSC to adopt regulations to establish a process to identify and prioritize chemicals or chemical ingredients in consumer products that may be considered chemicals of concern, as specified. (HSC § 25252)
- Requires DTSC to adopt regulations to establish a process to evaluate chemicals of concern in consumer products, and their potential alternatives, to determine how to best limit exposure or to reduce the level of hazard posed by a chemical of concern. (HSC § 25253 (a))
- Specifies, but does not limit, regulatory responses that DTSC can take following the completion of an alternatives analysis, ranging from no action, to a prohibition of the chemical in the product. (HSC § 25253)
FISCAL EFFECT: Unknown
COMMENTS:
Need for the bill: According to the author, "These once ubiquitous, forever compounds have been linked to health problems, including breast and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption. The presence of PFAS in menstrual products contributes to existing gender health inequities as exposure to PFAS is almost unavoidable. In a recent study, 48% of sanitary pads, incontinence pads, and panty liners tested were found to contain PFAS, as were 22% of tampons. Additionally, menstrual products have shown higher levels of PFAS than are found in tap water.
AB 2515 takes a critical step towards protecting women’s health and reducing the amount of PFAS in the environment by eliminating polyfluoroalkyl substances (PFAS) from menstrual products. California’s pursuit for gender equity and clean drinking waters requires action to ensure that feminine hygiene products are safe, clean and free from forever chemicals. With viable alternatives available, there is no longer a good rationale for their use in menstrual products. Women’s health must be prioritized over the use of these unnecessary chemicals. It’s past time to protect women and our environment."
Perfluoroalkyl and polyfluoroalkyl substances (PFAS): PFAS are synthetic, highly fluorinated substances that have been widely used in industrial and consumer applications for their heat, water, and lipid resistance properties for more than seven decades. In consumer products, PFAS are used in carpets, furniture fabrics, apparel, paper packaging for food, non-stick cookware, personal care products, and other products designed to be waterproof; grease, heat, water and stain resistant; or, non-stick. Commercial applications span many sectors of the economy, including aerospace, automotive, building and construction, pharmaceuticals, medical devices, paints, electronics, semiconductors, energy, oil and gas exploration, first responder safety, firefighting foams, and health care. During production, use, and disposal, PFAS can migrate into the soil, water, and air. Some PFAS are volatile, and can be carried long distances through the air, leading to contamination of soils and groundwater far from the emission source. Researchers have found PFAS in indoor and outdoor environments, plants, soil, food, drinking water, wildlife, companion animals, production animals, and humans at locations across the nation and around the globe. PFAS are extremely persistent and degrade very slowly over time, which has resulted in their accumulation in the environment since the onset of their production in the late 1940s. Currently, nearly 15,000 PFAS chemicals are included in the chemicals database CompTox, which is maintained by the United States Environmental Protection Agency (US EPA).
Exposure to PFAS: The main route of exposure to PFAS is through ingestion of contaminated food or liquid (accounting for up to half of total exposure), through contact with consumer products, and through inhalation and ingestion of contaminated indoor air and dust. Food can become contaminated with PFAS through soil and water used to grow the food, food packaging containing PFAS, and equipment that uses PFAS during processing. Some foods, such as fish, meat, eggs, and leafy vegetables, may contain PFAS due to bioaccumulation and crop uptake. Studies have shown that PFAS can transfer from pregnant mothers to their fetuses via the placenta during gestation, as well as transfer from nursing mothers to their infants via breastfeeding. Dermal exposure is also possible when people touch products treated with PFAS, such as carpets or clothing. Young children may be exposed to higher levels of PFAS than adults because they ingest more dust containing PFAS and mouth PFAS-treated consumer products. Workers, such as carpet installers, carpet cleaners, firefighters, and workers in furniture, furnishings, outdoor clothing, and carpet stores, may also experience above average PFAS exposure levels.
Exposure to PFAS in drinking water is an escalating concern due to the persistence of PFAS chemicals in the environment and their tendency to accumulate in groundwater. Groundwater PFAS contamination typically has been associated with industrial facilities where these chemicals were manufactured or are used in other products, and in airfields where the chemicals have been used for firefighting. PFAS chemicals can also enter the environment and drinking water through composting, landfilling, recycling, and incineration of products containing PFAS. The State Water Board indicates that the four major sources of PFAS in drinking water in California are fire training/fire response sites, industrial sites, landfills, and wastewater treatment plants/biosolids. The State Water Board notes that because of their presence and persistence in many drinking water supplies, PFAS remain a serious source of exposure decades after their release into the environment.
Like humans, wildlife is exposed to PFAS by consuming contaminated water or food. Within aquatic food webs, PFAS are found to increase in concentration from ambient water to plankton and further up the food chain.
Hazard traits of PFAS: According to DTSC, all PFAS display at least one of the hazard traits identified in California's Safer Consumer Products (Green Chemistry) Hazard Traits Regulations (22 C.C.R § 69401 et seq.). An intrinsic property of PFAS is the extreme environmental persistence of either the individual compounds or their degradation products or both, resulting in their classification as "forever chemicals." Most PFAS are mobile in environmental media such as air and water, and thus are widespread in living organisms and the environment.
Scientific studies have shown that exposure to some PFAS can lead to adverse health outcomes in humans and animals. DTSC states that if humans are exposed to PFAS through diet, drinking water, or inhalation, some of these chemicals remain in the body for a long time. As people continue to be exposed to PFAS, the PFAS levels in their bodies may increase to the point that they suffer adverse health effects. According to the US EPA, current peer-reviewed scientific studies have shown that exposure to certain levels of PFAS may lead to: reproductive effects such as decreased fertility or increased high blood pressure in pregnant women; developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations, or behavioral changes; increased risk of some cancers, including prostate, kidney, and testicular cancers; reduced ability of the body’s immune system to fight infections, including reduced vaccine response; interference with the body’s natural hormones; and, increased cholesterol levels and/or risk of obesity. In addition to direct human health impacts, some PFAS, may have high global warming potential. Also, several PFAS bioaccumulate significantly in animals or plants and emerging evidence points to their phytotoxicity, aquatic toxicity, and terrestrial ecotoxicity.
The persistence and proliferation of PFAS chemicals makes it challenging to study and assess the overall potential human health and environmental risks of PFAS exposure.
Regulating PFAS as a class: DTSC adopted a rationale for regulating PFAS chemicals as a class, concluding, "it is both ineffective and impractical to regulate this complex class of chemicals with a piecemeal approach." This rationale was presented in the February, 2021, Environmental Health Perspectives article, "Regulating PFAS as a Chemical Class under the California Safer Consumer Products Program." The authors of the article state,
"The widespread use, large number, and diverse chemical structures of PFAS pose challenges to any sufficiently protective regulation, emissions reduction, and remediation at contaminated sites. Regulating only a subset of PFAS has led to their replacement with other members of the class with similar hazards, that is, regrettable substitutions. Regulations that focus solely on perfluoroalkyl acids (PFAAs) are ineffective, given that nearly all other PFAS can generate PFAAs in the environment… We at the California DTSC propose regulating certain consumer products if they contain any member of the class of PFAS because: a) all PFAS, or their degradation, reaction, or metabolism products, display at least one common hazard trait according to the California Code of Regulations, namely environmental persistence; and b) certain key PFAS that are the degradation, reaction or metabolism products, or impurities of nearly all other PFAS display additional hazard traits, including toxicity; are widespread in the environment, humans, and biota; and will continue to cause adverse impacts for as long as any PFAS continue to be used. Regulating PFAS as a class is thus logical, necessary, and forward-thinking."
Other researchers have made the case for managing PFAS as a chemical class, including in "Scientific Basis for Managing PFAS as a Chemical Class" published in June, 2020, in Environmental Science & Technology Letters, and "Strategies for grouping per- and polyfluoroalkyl substances (PFAS) to protect human and environmental health," also published in June, 2020, in Environmental Science: Processes & Impacts.
PFAS in menstrual products: In the United States, people who menstruate have their period, on average, for about 40 years of their life. During this time, they rely on a diverse range of menstrual products, including tampons, pads, menstrual cups, and period underwear. To illustrate the prevalence of PFAS in menstrual products, the author of the bill points to tests on menstrual products commissioned by the consumer watchdog site, Mamavation, and Environmental Health News. Conducted at US EPA-certified laboratories between 2020 and 2022, the tests detected organic fluorine, a marker for PFAS, in several menstrual products. For example, 22% of the 23 tampon products tested had indications of PFAS, including 2 products advertised as "organic." Forty eight percent of 46 different sanitary pads, panty liners, and incontinence pads tested had indications of PFAS, including several products marketed as "organic" and "natural." Finally, 65% of period underwear products tested, and 57% of the period underwear brands tested, had detectable levels of fluorine present.
To further investigate PFAS in menstrual products, in early 2023, the Wirecutter at the New York Times purchased and tested at a University of Notre Dame laboratory 44 different period and incontinence products and found:
- "Two of the 10 pairs of period underwear we sent showed high enough levels of fluorine to suggest that PFAS had been added to them at some point in the manufacturing process. Two of the remaining eight showed levels that suggested unintentional PFAS contamination. These included period underwear from brands that have published documentation certifying that their products are free of these substances.
- The four medical-grade silicone menstrual cups we sent for testing all showed very low levels of suspected PFAS.
- All of the reusable and disposable incontinence underwear we had tested, half of the disposable incontinence pads, and most of the reusable and disposable menstrual pads showed high enough levels of fluorine to suggest unintentional PFAS contamination, with six of the 24 products in these categories registering enough fluorine to suggest that PFAS had been added to them.
- All five of the tampons we sent for testing showed very low levels of suspected PFAS, though the applicator from one of them showed fluorine levels suggesting unintentional PFAS contamination."
Exposure to PFAS through menstrual products is particularly concerning because the vagina is an extremely vascular area and dermal exposure in the vaginal area is often higher than other places of the body. Additionally, people using menstrual products are of reproductive age, thus exposure could potentially impact unborn children, as well as the person using the product. Also, according to the New York Times article, experts are particularly concerned about the effects of PFAS during phases when the body is especially vulnerable, such as when someone gets their first period or is pregnant or is in menopause transition. During these times, the body and brain undergo major shifts, making them extra sensitive to endocrine disrupters.
This bill: This bill prohibits a person from manufacturing, distributing, selling, or offering for sale a menstrual product that contains regulated PFAS, as definied.
Recent US EPA action on PFAS: According to the US EPA, "Under the Biden-Harris Administration, [US] EPA has restored scientific integrity and accelerated the pace of research and actions needed to tackle the PFAS crisis and protect American communities." On October 18, 2021, US EPA Administrator Michael S. Regan announced the agency’s PFAS Strategic Roadmap, which laid out a whole-of-agency approach to addressing PFAS. The roadmap sets timelines by which US EPA plans to take specific actions and commits to, "bolder new policies to safeguard public health, protect the environment, and hold polluters accountable."
The US EPA reported that since the roadmap’s release in October 2021, it has taken a number of key actions to address PFAS, including publishing a rule that will require all manufacturers (including importers) of PFAS to report information on PFAS uses, production volumes, disposal, exposures, and hazards; initiating nationwide monitoring of 29 PFAS in drinking water systems; allocating $2 billion to address emerging contaminants, including PFAS, in drinking water across the country; and, releasing a framework for addressing new PFAS and new uses of PFAS under the Toxic Substances Control Act (TSCA). US EPA states that the framework will ensure that before these chemicals are allowed to enter into commerce, US EPA will undertake an extensive evaluation to ensure they pose no harm to human health and the environment.
State action on PFAS: California has undertaken efforts to address PFAS substances across several state entities. For example, at DTSC, all PFAS chemicals are "Candidate Chemicals" under the Safer Consumer Products (SCP, previously known as Green Chemistry) Program, because they exhibit a hazard trait and/or an environmental or toxicological endpoint, and the entire class of PFAS was added by the California Environmental Contaminant Biomonitoring Program to its list of priority chemicals.
On July 1, 2021, DTSC designated carpets and rugs containing PFAS as a "Priority Product." A Priority Product is a consumer product identified by DTSC that contains one or more Candidate Chemicals and that has the potential to contribute to significant or widespread adverse impacts to humans or the environment. The Priority Product designation required domestic and foreign carpet and rug manufacturers that use PFAS and related chemicals in their products to submit information on all of the manufacturer’s products that contain PFAS and are sold in California, by August 30, 2021. Manufacturers were then required to show intent to remove or replace PFAS in their products, remove the product from the market, or identify potential alternatives to PFAS to be used in the product by December 28, 2021. This process is ongoing.
In regulations that went into effect on April 1, 2022, DTSC also designated treatments containing PFAS for use on converted textiles or leathers such as carpets, upholstery, clothing, and shoes as a Priority Product. Domestic and foreign manufacturers of treatments for converted textiles or leathers that contain any member of the class of PFAS selling their products in California were required to submit information on those products by May 31, 2022. After submitting the required information, manufacturers were then required to show intent to mitigate exposure to PFAS in their products by September 28, 2022. This process is ongoing.
DTSC appears to be evaluating artificial turf with PFAS. Previously, DTSC proposed investigating PFAS in other product categories, such as food packaging and children’s products, but during the investigative period the Legislature prohibited PFAS in those product categories and it appears DTSC has shifted its resources to investigating other product/ chemical combinations.
OEHHA, under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), listed PFOA and PFOS as chemicals known to the state to cause reproductive toxicity. In July, 2021, OEHHA announced the release of a draft document for public review describing proposed Public Health Goals (PHGs) for PFOA and PFOS in drinking water. A PHG is the level of a chemical contaminant in drinking water that does not pose a significant risk to health. PHGs published by OEHHA are considered by the State Water Board in setting drinking water regulatory standards (Maximum Contaminant Levels, or MCLs) for California.
The State Water Board has taken a number of recent actions related to PFAS in drinking water, including several investigative orders to public water systems requiring testing for PFAS. Most recently, it issued General Order DW 20240002DDW (2024 Order), in March 2024, to public water systems for monitoring PFAS in community public water systems serving disadvantaged and severely disadvantaged communities. The purpose of this monitoring is to understand PFAS’s impacts on drinking water in these communities.
Recently, the State Legislature has also taken action on PFAS by enacting a slew of bills prohibiting PFAS at different levels across many product categories. These include a ban on textiles that contain PFAS (AB 1817,Ting, Chapter 762, Statutes of 2022); a ban on cosmetic products that contain PFAS (AB 2771, Friedman, Chapter 804, Statutes of 2022); a ban on food packaging that contains PFAS (AB 1200, Ting, Chapter 503, Statutes of 2021); a ban on new juvenile products that contain PFAS (AB 652, Freidman, Chapter 500, Statutes of 2021); and, a ban on firefighting foam containing PFAS (SB 1044, Allen, Chapter 308, Statutes of 2020). The Legislature also authorized the State Water Board to order public water systems to monitor for PFAS and required municipalities to notify consumers of PFAS detected above notification levels (AB 756, C. Garcia, Chapter 162, Statutes of 2019).
Chemical bans and the Safer Consumer Products Program: In 2008, California enacted AB 1879 (Feuer and Huffman, Chapter 559, Statutes of 2008) to establish a regulatory process for identifying and prioritizing chemicals of concern in consumer products, to create methods for analyzing alternatives to existing hazardous chemicals, and to ultimately take regulatory action to reduce the level of harm from the chemicals in those products. DTSC did this by promulgating the Safer Consumer Products regulations, which took effect in October 2013. DTSC's approach provides science-based criteria and procedures for identifying and evaluating alternatives with the objective of replacing chemicals of concern with safer chemicals and avoiding the use of substitute chemicals that pose equal or greater harm.
While the intent of AB 1879 is to establish a robust and thorough regulatory process rooted in science to consider exposure to chemicals in consumer products, it has long been recognized that DTSC does not have the resources to evaluate all, or even a significant percentage of, chemicals in every consumer product application. The permutations of product and chemical combinations are virtually limitless. To that end, the Safer Consumer Products statute does not preclude the Legislature from taking legislative action on the use of chemicals in consumer products. When there is credible scientific evidence to support a change in state policy to protect public health, the Legislature can respond to that science more expeditiously than can DTSC. Since AB 1879 was enacted, the Legislature has enacted policies on various chemical-product applications, which include, in addition to the PFAS prohibitions listed above, a ban on flame retardants in children's products, mattresses, and upholstered furniture (AB 2998, Bloom, Chapter 924, Statutes of 2018); a ban on BPA in toddler sippy cups and bottles (AB 1319, Butler, Chapter 467, Statutes of 2011); a ban on the sale of jewelry with cadmium at certain levels (AB 929, Pavley, Chapter 313, Statutes of 2010); and, a ban on the sale of brake pads containing copper in exceedances of certain levels (SB 346, Kehoe, Chapter 307, Statutes of 2010).
DTSC, in fact, wrote in support of AB 1319 (Butler) stating: "DTSC does not believe that the [Safer Consumer Products] regulations should ever be viewed as excluding action that the Legislature might take to address specific product related concerns that are brought to its attention. Not only have the regulations taken longer to adopt than originally anticipated, DTSC also expects that the process to be represented in the regulations will be subject to time and resource constraints. There may be circumstances that warrant more timely action than DTSC can accommodate through its process."
Acceptable levels of PFAS in products: This bill prohibits, in menstrual products, intentionally added PFAS, and, commencing January 1, 2027, PFAS at or above 10 PPM, as measured in total organic fluorine. Existing statute sets different thresholds for PFAS in different product categories, including 100 PPM for juvenile products, textile articles, and food packaging. Since the bills were enacted that set the 100 PPM standard in statute, science has emerged indicating that 100 PPM might not be protective enough, especially for some sensitive subpopulations. While this bill authorizes DTSC to enforce the provisions of the bill, it sets a standard of 10 PPM without the benefit of an investigation or study by DTSC’s team of scientists, who have related public health backgrounds. If standard-setting authority were conferred on DTSC, its team could set the appropriately protective thresholds, and update the threshold through regulation consistent with emerging science. Instead, the Legislature is tasked with setting the appropriately protective standard in statute, and presumably updating those statutory thresholds by legislation when needed.
This bill: This bill prohibits, commencing January 1, 2027, the presence of PFAS in a product or product component at or above 10 PPM, as measured in total organic fluorine. For the 10 PPM threshold set in this bill, the author’s office points to the European Union’s limit for PFOS, for which they reference the Regulation on the Use of Persistent Organic Chemicals from 2019, in Annex I, Part A.
Governor’s action on PFAS bills: In 2023, Governor Gavin Newsom vetoed three bills prohibiting the use of PFAS in several product categories, including AB 246 (Papan, 2023), which was similar to AB 2515. AB 246 would have prohibited, commencing January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale menstrual products that contain PFAS at or above 10 PPM (for a detailed list of related previous and current legislation, see the "Related legislation" section of this analysis). The three bills received similar veto messages. The message for AB 246 read:
"To the Members of the California State Assembly:
I am returning Assembly Bill 246 without my signature.
This bill would prohibit, by 2025, the manufacture, distribution, or sale of menstrual products that contain intentionally added perfluoroalkyl or polyfluoroalkyl substances (PFAS) at a certain concentration level, as well as limit, by 2027, the concentration of total organic fluorine in menstrual products.
This is one of three single-product chemical bans passed by the Legislature this year that attempt to address serious concerns with the presence of PFAS in consumer products. These bills do not identify or require any regulatory agency to determine compliance with, or enforce, the proposed statute.
While I strongly support the author's intent and have signed similar legislation in the past, I am concerned that this bill falls short of providing enhanced protection to California consumers due to lack of regulatory oversight. Previously enacted single-product chemical bans, which also lack oversight, are proving challenging to implement, with inconsistent interpretations and confusion among manufacturers about how to comply with the restrictions.
In order to instill consumer confidence and effectively address public health and environmental concerns, I am directing the Department of Toxic Substances Control to engage with the author and the Legislature and consider alternative approaches to regulating the use of these harmful chemicals in consumer products.
For these reasons, I cannot sign this bill.
Sincerely,
Gavin Newsom"
This bill: Unlike AB 246, this bill authorizes DTSC to adopt regulations or guidance as necessary for the purpose of implementing, administering, and enforcing the prohibition of PFAS in menstrual products, as delineated in the bill. It also requires DTSC to issue guidance as it relates to testing for the presence of regulated PFAS in menstrual products, and it exempts that guidance from the requirements of the Administrative Procedure Act. This exemption could allow DTSC to move quickly on establishing guidance as it relates to testing for the presence of regulated PFAS in menstrual products, but it would also permit DTSC to bypass the public rulemaking process requirements of the Administrative Procedure Act. The bill also gives DTSC additional enforcement authority by authorizing it to, if it finds that a menstrual product contains regulated PFAS and it reasonably suspects that imminent harm would result from the continued sale of the product, issue a cease and desist order to the manufacturer of the menstrual product. As this bill moves through the legislative process, the author may wish to consider whether to include the guidance on testing requirements and the cease and desist authority in DTSC’s authority to promulgate regulations.
Additional enforcement provisions: In addition to the enforcement authority conferred upon DTSC, AB 2515 authorizes any person to bring a civil action in a court of competent jurisdiction for any injury suffered as a result of a product sold in violation of the prohibitions in this bill; authorizes exemplary damages to also be awarded in any action brought pursuant to the provisions of this bill; provides for specified civil penalties; authorizes the court to grant injunctive relief in any action brought pursuant to the provisions of this bill; authorizes specified public attorneys to take actions to enforce the provisions in this bill; and requires that a prevailing plaintiff bringing an action pursuant to the provisions of this bill be awarded attorney’s fees and costs by the court. These enforcement authorities will be analyzed further by the Assembly Judiciary Committee, should this bill be approved by the Assembly Environmental Safety and Toxic Materials Committee.
Arguments in support: The American College of Obstetricians and Gynecologists District IX (ACOG) writes in support, "Exposure to toxic chemicals can have many harmful effects on health. These chemicals disrupt the body’s endocrine system, which makes hormones and sends them throughout your body. This means chemicals can affect many parts of your body, including your thyroid gland, brain, reproductive organs, and immune system. Chemicals can disrupt cells and contribute to cancer… Since the 1990s, we’ve called substances that have these harmful effects on the body "endocrine disruptors." There are many different types of endocrine disruptors, including lead and chemicals called parabens, phthalates, and PFAS, which are addressed in this bill. PFAS are widely used substances that break down very slowly, earning them the name "forever chemicals." This makes them especially harmful to our health. Given the harmful effects of PFAS, California has been focused on removing or limiting PFAS from our products. AB 2515 makes another logical step to remove and limit PFAS from menstrual products."
Los Angeles County Sanitation Districts writes in support, "AB 2515 would provide important protection from PFAS by controlling a potential source of this class of "forever chemicals" that have been shown to cause increased incidences of cancer and reproductive harm. In addition to the potential direct exposure to an individual, menstrual products containing PFAS are often flushed down the drain, or used products may be sent to solid waste facilities when disposed of in the trash. Additionally, landfill leachate (rainwater that filters through wastes in a landfill and is collected for proper management) is often discharged to the sewer and contributes to PFAS loadings at wastewater treatment facilities. When taken together with contributions from numerous other sources, these pathways can lead to ubiquitous low concentrations of PFAS in wastewater, which may be recycled or discharged to the ocean or other local waterways. AB 2515 could not only enhance public health by minimizing exposure to these hazardous chemicals but could also reduce the influx of PFAS into waste streams and the environment. As a passive receiver of PFAS at our solid waste and wastewater facilities, the Districts support implementing source control measures that prevent PFAS from entering the waste stream or the environment."
Arguments in opposition: A coalition of opponents writes, "Our manufacturers do not intentionally add PFAS to serve any functional or technical effect in menstrual products. Our coalition supports the responsible production, use, and management of fluorinated substances, including regulatory requirements that protect human health and the environment. Given menstrual products are an essential product for women’s health, our coalition is supportive of the policy direction in AB 2515…. Unfortunately, AB 2515 creates a framework that punishes manufacturers that are NOT intentionally adding PFAS to menstrual products by extending expansive liabilities for the unintentional presence of PFAS chemicals, at or above 10 PPM. The challenge of unintentional PFAS contamination is that it may exist beyond what a manufacturer can control. AB 2515 creates a brand-new private right of action (PRA)... and the ability to levy punitive damages. PRAs bring unintended consequences and increase frivolous litigation on California businesses… AB 2515, and its prohibition on intentionally added PFAS, is laudable. However, the provisions establishing the PRA and accompanying punitive damages are wrongly placed. Punitive damages are generally warranted when a party’s actions are malicious, intentional, or are grossly negligent. Punitive damages are structured to deter a party from repeating certain misconduct in the future. In the case of AB 2515, manufacturers are not intentionally adding PFAS or wishing to harm consumers. Manufacturers are responsibly not using these chemicals but will face lawsuits accusing them of malfeasance even though they have removed any intentional application of PFAS to the product… If the private right of action and punitive damages provisions in AB 2515 are removed from the bill, we believe the primary remaining issue is resolvable…. AB 2515 is not clear on what the scope of the violation would be if a single item were to be tested to contain levels above the specified threshold. Specifically, it would be helpful to understand whether, when a single tampon, pad or other individual item is tested, the intent of the language is that a detect over the threshold will constitute a violation on a per item basis, whether the violation would include any sales of that item (e.g., in various pack configurations), or something in between (e.g., if the item tested was in a 16-ct. pack, then the violation is any sales of that specific pack). Clarifying language, which our coalition provided to the author to resolve the issue and hope will be accepted, would be helpful so that companies are clear as to the scope of a violation."
Related legislation:
- AB 2761 (Hart). Prohibits, beginning January 1, 2026, the sale, use, and manufacture of plastic packaging that contains PFAS or polyvinyl chloride (PVC), inclusive of polyvinylidene chloride (PVDC). This bill is pending in the Assembly Environmental Safety and Toxic Materials Committee.
- SB 903 (Skinner). Prohibits, commencing January 1, 2030, a person from distributing, selling, or offering for sale in the state a product that contains intentionally PFAS. Authorizes DTSC to establish regulations to administer the prohibition. This bill is pending in the Senate Judiciary Committee.
- AB 347 (Ting). Requires DTSC to take a number of actions regarding implementation of existing laws dealing with PFAS in food packaging and cookware, including adopting and publishing guidance and testing products. This bill is currently on the inactive file on the Senate floor.
- AB 246 (Papan, 2023). Would have prohibited, commencing January 1, 2025, a person from manufacturing, distributing, selling, or offering for sale in the state menstrual products that contain PFAS at or above 10 PPM. This bill was vetoed by Governor Gavin Newsom.
- AB 727 (Weber, 2023). Would have prohibited, beginning January 1, 2025, a person from manufacturing, selling, delivering, distributing, holding, or offering for sale, a cleaning product that contains intentionally-added PFAS or PFAS at or above 50 PPM, and on January 1, 2027, a cleaning product that contains PFAS at or above 25 PPM. This bill was vetoed by Governor Gavin Newsom.
- AB 1423 (Schiavo, 2023). Would have prohibited, commencing January 1, 2025, a person or entity from manufacturing, distributing, selling, or offering for sale in the state any covered surface that contains PFAS at or above 20 PPM, and, commencing January 1, 2024, a public entity, a public or private school, or a public or private institution of higher learning, as specified, from purchasing or installing a covered surface that contains PFAS at or above 20 PPM. This bill was vetoed by Governor Gavin Newsom.
- AB 1817 (Ting, Chapter 762, Statutes of 2022). Prohibits, beginning January 1, 2024, a person from distributing, selling, or offering for sale in the state a textile article, as defined, that contains regulated PFAS, and requires a manufacturer to use the least toxic alternative when removing regulated PFAS in textile articles to comply with the provisions of the bill.
- AB 2771 (Friedman, Chapter 804, Statutes of 2022). Prohibits, commencing January 1, 2025, a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added PFAS.
- AB 1200 (Ting, Chapter 503, Statutes of 2021). Prohibits, commencing January 1, 2023, the sale of food packaging that contains PFAS; requires, commencing January 1, 2024, cookware manufacturers to label their product if it contains an intentionally added chemical on specified lists; and prohibits, commencing January 1, 2023, for the internet and January 1, 2024, for the cookware package, a cookware manufacturer from making a claim that cookware is free of a chemical, unless no chemical from that chemical class is intentionally added to the cookware.
- AB 652 (Freidman, Chapter 500, Statutes of 2021). Prohibits, on or after July 1, 2023, a person from selling or distributing in commerce any new juvenile products that contain PFAS.
- SB 1044 (Allen, Chapter 308, Statutes of 2020). Prohibits the manufacture, sale, distribution, and use of firefighting foam containing PFAS chemicals by January 1, 2022, with some exceptions, and requires notification of the presence of PFAS in the protective equipment of firefighters.
- SB 1056 (Portantino, 2020). Would have required the State Water Board to establish an analytical laboratory method that can be used as a tool to assess the extent of PFAS contamination in drinking water, surface water, groundwater, and wastewater. This bill was held in the Senate Environmental Quality Committee.
- AB 1989 (C. Garcia, Chapter 272, Statutes of 2020). Requires a package or box containing menstrual products that was manufactured on or after January 1, 2023, for sale or distribution in this state to have printed on the label a plain and conspicuous list of all intentionally added ingredients, as defined.
- AB 756 (C. Garcia, Chapter 162, Statutes of 2019). Authorizes the State Water Board to order one or more public water systems to monitor for PFAS and requires municipalities to notify consumers for PFAS detected above notification levels.
- AB 841 (Ting, Chapter 372, Statutes of 2019). As heard by the Assembly, would have required OEHHA to assess PFAS substances, especially as they might be found in drinking water, to determine which might pose a potential risk to human health. The contents of this bill were deleted in the Senate and amended with unrelated content.
- AB 958 (Ting, 2018). Would have required a manufacturer of food packaging or cookware sold in the state to visibly disclose on an exterior location of the food packaging or cookware packaging a specified statement relating to the presence of PFAS in the product. This bill was held on the Senate Floor.
- SB 1313 (Corbett, 2008). Would have prohibited the manufacture, sale, or distribution of any food contact substance, as defined, which contains perfluorinated compounds, as defined, in any concentration exceeding 10 parts per billion. This bill was vetoed by Governor Arnold Schwarzenegger.
Double referral: This bill was referred to the Assembly Environmental Safety and Toxic Materials Committee and the Assembly Judiciary Committee. Should this bill be approved by the Assembly Environmental Safety and Toxic Materials Committee, it will be referred to the Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
A Voice for Choice Advocacy
American College of Obstetricians and Gynecologists District IX
Breast Cancer Prevention Partners
California Professional Firefighters
California Women's Law Center
Cleanearth4kids.org
Educate. Advocate.
Los Angeles County Sanitation Districts
Orange County Sanitation District
Planned Parenthood Affiliates of California
Reproductive Freedom for All
Opposition
American Chemistry Council
American Forest & Paper Association
California Chamber of Commerce
California Manufacturers and Technology Association
Center for Baby and Adult Hygiene Products
Civil Justice Association of California
Analysis Prepared by: Shannon McKinney / E.S. & T.M. /
Discussed in Hearing
1MIN
Assembly Floor
2MIN
Senate Floor
1MIN
Senate Standing Committee on Appropriations
24MIN
Senate Standing Committee on Judiciary
20MIN
Senate Standing Committee on Environmental Quality
1MIN
Assembly Floor
14MIN
Assembly Standing Committee on Judiciary
16SEC
Assembly Standing Committee on Judiciary
Bill Author
Bill Co-Author(s):