California Attorney General Issues Enforcement Advisory Letter to Warn Companies of Responsibility to Disclose Presence of PFAS

California Attorney General Rob Bonta announced the release of an enforcement advisory letter on October 17, 2023, to manufacturers, distributors, and sellers of food packaging and cookware, alerting them to their obligations under AB 1200, a recently enacted statute that restricts the presence of per- and polyfluoroalkyl substances (PFAS) in food packaging and imposes labeling disclosure requirements for cookware. Bonta also issued a consumer alert with tips for reducing PFAS exposures. The enforcement advisory letter addresses the following provisions:

• Restrictions on food packaging: Businesses, including shops and restaurants selling take-out food, are prohibited from distributing, selling, or offering for sale any “food packaging” that contains regulated PFAS. Manufacturers are required to use the least toxic alternative when replacing regulated PFAS in “food packaging.” The enforcement advisory letter notes that “food packaging” is defined broadly as packaging that “is comprised, in substantial part, of … materials originally derived from plant fibers.” Regulated PFAS include:
  • 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; and
  • The presence of PFAS in a product or product component at or above 100 parts per million, as measured by total organic fluorine.
• Disclosure and Labeling Requirements for Cookware: A cookware manufacturer must follow certain disclosure and labeling requirements when intentionally including in a product a chemical on the “designated list” maintained by the California Department of Toxic Substances Control (CDTSC) under its Safer Consumer Products program. The enforcement advisory letter states that the disclosure and labeling requirements apply only when a listed chemical is intentionally included in the handle of the product or in any product surface that comes into contact with food, foodstuffs, or beverages.
  • Internet Disclosure: Beginning January 1, 2023, a manufacturer of cookware subject to the bill’s requirements shall post on the website for the cookware:
    • A list of all chemicals in the cookware that are also present on the designated list;
    • The name(s) of the authoritative list or lists referenced by CDTSC in compiling the designated list on which each chemical in the cookware is present; and
    • A link to the Internet website for the authoritative list or lists referenced by CDTSC in compiling the designated list on which each chemical in the cookware is present.
  • Prohibition on “Chemical Free” Claims on the Internet: Beginning January 1, 2023, a manufacturer shall not claim on the website for the cookware that the cookware is free of any specific chemical if the chemical belongs to a chemical group or class identified on the designated list unless that chemical was not intentionally added to the cookware.
  • Product Label Disclosures: Beginning January 1, 2024, a manufacturer of cookware subject to the bill’s requirements must list on the product label the intentionally added chemicals present on the “designated list” in the handle of the product or in any cookware surface that comes into contact with food, foodstuffs, or beverages on the product label. AB 1200 sets forth specific language that a product label must include. A cookware manufacturer must ensure that the required statement on the product label is visible and legible to the consumer, including on the product listing for online sales. AB 1200 provides an exemption from the product label disclosure requirement if the surface area of the cookware cannot fit a product label of at least two square inches and the cookware does not have either of the following:
    • An exterior container or wrapper on which a product label can appear or be affixed; or
    • A tag or other attachment with information about the product attached to the cookware. The enforcement advisory letter states that even if a manufacturer is exempt from the product label disclosure requirement, the manufacturer must ensure that the required statement is included on the product listing for online sales.
  • Prohibition on “Chemical Free” Claims on Product Label: Beginning January 1, 2024, manufacturers are prohibited from claiming on cookware packaging that the cookware is free of any specific chemical if the chemical belongs to a chemical group or class identified on the “designated list” unless that chemical was not intentionally added to the cookware.

The enforcement advisory letter “urge[s] companies to assess their food packaging and cookware products and ensure that they are complying with the requirements summarized in this letter.” The enforcement advisory letter notes that companies should be aware that, if they fail to comply, they may be subject to enforcement actions. Bonta states that he has “made it a priority as Attorney General to protect public health and the environment from the threat of further PFAS exposure, and I consider A.B. 1200 an important tool for advancing that priority.”