Read the full article by Stephanie Feingold, Drew Cleary Jordan, Rick Rothman, & Tanua Shah (JD Supra)

“California’s Department of Toxic Substances Control recently proposed to add carpets and rugs containing perfluoroalkyl or polyfluoroalkyl substances (PFAS) as a Priority Product under the state’s Safer Consumer Products program. This is a new step in the evolution of how states and government agencies are seeking to regulate and reduce exposure to PFAS in the face of delayed federal action. Given the potential impact on the manufacturing and sale of related products, stakeholders and other consumer-facing parties would be well advised to pay close attention to this rulemaking process.

What Are PFAS?

PFAS are a group of synthetic chemicals including approximately 5,000 fluorinated compounds, including perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and GenX chemicals. They have become known as ‘forever’ chemicals due to the substances’ persistent nature and ability to bioaccumulate.

Proposed Regulation Targets Front-End Contamination

The Department of Toxic Substances Control’s (DTSC’s) proposed regulation is notable insofar as it provides an opportunity for the agency to address PFAS contamination on the front end before they enter into the environment, and is focused on PFAS exposure in connection with consumer products. This is in contrast to the majority of recent regulatory actions surrounding PFAS aimed at addressing PFAS contamination in the environment from disposals or releases. 

DTSC’s proposed rulemaking seeks to add carpets or rugs containing PFAS as a Priority Product on the Priority Products List under the Safer Consumer Product (SCP) regulations. Under California law, a manufacturer is required to notify the DTSC when its product is listed as a Priority Product.

Additionally—if the proposed rulemaking is finalized—manufacturers may be required to either stop selling the regulated product in California or perform an “alternatives analysis” to determine if there is a safer substitute, among other requirements. The proposed listing would apply to consumer products made from natural or synthetic fabric that contain any PFAS and that are intended for use as floor covering inside commercial or residential buildings.

Exceptions from Priority Product Listing

The listing will exclude the following:

  • Carpets and rugs intended solely for outdoor use; for use inside airplanes, trains, automobiles, light duty trucks, vans, buses, or any other vehicle; and those intended for use in any other indoor environments besides buildings
  • Resilient floor coverings
  • Artificial turf
  • Wall hangings and coverings
  • Table mats
  • Camping sleep mats…”