On October 17, 2023, California Attorney General Rob Bonta issued an enforcement advisory letter to manufacturers, distributors, and sellers of food packaging and cookware regarding enforcement of California’s PFAS restrictions for these product categories. The advisory letter details the requirements and restrictions under AB 1200, many of which went into effect in January 2023, with some new requirements following in January 2024.
As with many other remedial statutes in California, AB 1200 does not specify any specific penalty provisions or enforcement policies, or authorize any state agency to implement the law or an administrative enforcement scheme. As a result, we assumed one of the Attorney General, or district and city attorneys would take on enforcement, and this letter confirms that the AG will be doing so. The AG intends to make enforcement of AB 1200 a “priority” in the coming years and we expect to gain further clarity into AB 1200 through these enforcement actions. We will be tracking the AG’s actions accordingly.
Notably absent from this enforcement advisory letter is any mention of enforcing the existing ban of PFAS in juvenile products, or any forward-looking statement regarding other PFAS bans in 2025, namely apparel and textiles. This absence seems to suggest that the AG will focus on food packaging and cookware for the near future.
AB 1200 will be enforced primarily under California’s Unfair Competition Law (UCL) and the Business and Professions Code § 17500. The AG has a litany of options for enforcement when businesses fail to comply, including civil penalties, restitution, injunctive relief, and even criminal liability. The UCL requires that enforcement actions be brought within four years of the cause of action and the penalties under the UCL cannot exceed $2500 per violation. However, additional penalties of up to $2500 may be imposed for acts perpetrated against senior citizens, disabled persons, and military veterans. Intentional violations of injunctions issued under the UCL may be subject to penalties of up to $6000 per violation.
Background on AB 1200
AB 1200 contains two requirements: (i) restrictions on the use of intentionally added PFAS in food packaging sold in the state, and (ii) requirements for manufacturers of cookware to disclose the presence of California-designated “Chemicals of Concern.”
The restrictions related to food packaging went into effect in January 2023 and prohibit any business from “distributing, selling, or offering for sale” any food packaging that contains regulated PFAS. Food is broadly packaging described to encompass any packaging for food that is substantially derived from plant fibers (e.g., paper to-go containers at restaurants). The definition of regulated PFAS is similarly broad, including PFAS that is added for a specific functional or technical effect, or the presence of PFAS as a contaminant at or above 100 parts per million. With regard to cookware, as of January 1, 2023, AB 1200 requires manufacturers of cookware (which includes importers) sold in California to disclose on their website the presence of intentionally added designated chemicals in the handle or any surface that contacts food, foodstuff, or beverages. As of January 1, 2024, the disclosure must also be provided on the product label.