DO I HAVE A CLAIM IF I PURCHASED APPAREL OR COSMETICS CONTAINING PFAS?

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More and more consumers are becoming concerned regarding the presence of per-and-polyfluoroalkyl substances (“PFAS”) in everyday products, including cosmetics and apparel.  Troublingly, researchers have linked PFAS to a long list of health effects, including fertility, high blood pressure, increased risk of certain cancers, developmental delays, hormonal disruption, and high cholesterol, amongst others.  Still, businesses continue to use PFAS, leaving consumers wondering whether they have recourse if they purchased apparel or cosmetics containing PFAS.

California has taken steps to address those concerns.  Specifically, in September 2022, Governor Newsom signed Assembly Bills (“AB”) 1817 and 2771 into law.  AB 1817 will be codified at California’s Health and Safety Code, §§ 108970-108971 and will go into effect January 1, 2025.  At that point, Section 108971(a) will prohibit the manufacture, distribution and sale of “any new, not previously used, textile articles that contain regulated . . . PFAS.” 

Section 108971(a) will not apply to “outdoor apparel for severe wet conditions until January 1, 2028.”  But beginning January 1, 2025, businesses that sell such apparel will be required to provide a “legible and easily discernable disclosure with the statement ‘Made with PFAS chemicals,’ including for online listings” of the products. 

Section 108970 provides the relevant definitions for various terms.  The term “textile articles” has an expansive meaning.  It refers to “textile goods of a type customarily and ordinarily used in households and businesses, and include, but are not limited to, apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths.”  And the word “textile” means “any item made in whole or in part from a natural, manmade, or synthetic fiber, yarn, or fabric, and includes, but is not limited to, leather, cotton, silk, jute, hemp, wool, viscose, nylon, or polyester.”  

The statute covers “regulated PFAS,” which means either “(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,” or (2) the “presence of PFAS in a product or product components at or above the following thresholds, as measured in total organic fluorine: (A) Commencing January 1, 2025, 100 parts per million.  (B) Commencing January 1, 2027, 50 parts per million.”    

AB 1817 is complemented by AB 2771, which will be codified at California’s Health and Safety Code, §§ 108981-108982.  Also beginning on January 1, 2025, that law will prohibit “a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce any cosmetic product that contains intentionally added” PFAS.  That statute broadly defines “cosmetic product” to mean “an article for retail sale or professional use intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.” 

Once AB 1817 and 2771 go into effect, consumers may seek to hold companies accountable when applied in conjunction with other of California’s consumer protection statutes, such as the Unfair Competition Law (“UCL”) set forth at California Business & Professions Code § 17200.  The UCL is a broadly drawn statute that forbids “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”  A UCL claim may be based on a predicate violation of another law, such that a UCL claim may be based on a violation of California’s Health & Safety Code § 108971(a)(1).

Further, consumers may have recourse under more traditional false advertising theories if the products are marketed as not containing PFAS, or the advertising or labels are otherwise rendered false or misleading due to the presence of PFAS.  One such statute, California’s Legal Remedies Act (the “CLRA”), California Civil Code, §§ 1750-1784, makes the following practices unlawful: “representing that goods . . . have . . . approval, characteristics, ingredients, uses, benefits . . . that they do not have;” “advertising goods or services with intent not to sell them as advertised;” and “representing that the subject of a transaction has been supplied in accordance with a previous representation when it has not.”  And the CLRA is complemented by California’s False Advertising Law (the “FAL”), California Business and Professions Code, § 17500, which prohibits the dissemination of any information “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.”

Additionally, depending on the facts of the case, California’s consumers may also find support from California’s Song-Beverly Consumer Warranty Act provided at California Civil Code §§ 1790-1795.8.  For example, a consumer could potentially allege a violation of the implied warranty of merchantability, set out at California Civil Code § 1791.1(a).  That section provides consumer goods must “(1) pass without objection in the trade under the contract description; (2) are fit for the ordinary purposes for which such goods are used; (3) are adequately contained, packaged, and labeled; and (4) conform to the promises or affirmations of fact made on the container or label.”

Where a company explicitly makes statements about the nature of a product that are rendered false by the existence of PFAS, consumers may also be able to allege a breach of express warranty under the Song-Beverly Act.  An express warranty means: “(1) a written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance; or (2) in the event of any sample or model, that the whole of the goods conform to such sample or model.”

Though the recent legislation concerning apparel and cosmetics does not go into effect until January 1, 2025, consumers may still have recourse for those consumer goods through California’s other consumer protection statutes.  Individuals may also have recourse for PFAS in other categories of consumer products, such as certain disposable food packaging or cookware or certain children’s products.  Additionally, certain PFAS are presently actionable under California’s Proposition 65.  Any individual considering legal recourse should consult a qualified attorney who can evaluate the applicable laws, relevant legal developments, and specific facts of a given case.

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