The Nickel Report

On October 17, 2023, the California Attorney General (AG) Rob Bonta released an enforcement advisory letter to manufacturers, distributors, and sellers of food packaging and cookware detailing how he intends to enforce AB 1200, a law which: 1) bans the sale of regulated per- and polyfluoroalkyl substances (PFAS) in food packaging in California, and 2) requires disclosure and labeling of chemicals on a “designated list,” including PFAS, that are present in the food contact surface or the handle of cookware products sold in California. Because the individual laws do not provide specific enforcement mechanisms, this announcement is the first time the AG’s office has articulated the authorities it plans to use to enforce these laws. The enforcement advisory letter provides a clear warning to the regulated community, from manufacturers to importers to distributors and retailers, that California will be enforcing its PFAS laws. Similar advisories could be issued in the future for California’s other laws restricting PFAS in juvenile products, textiles, and cosmetics.

AB 1200: Chemicals in Food Packaging and Cookware

Since January 1, 2023, no person can legally distribute, sell, or offer for sale in California any food packaging that contains regulated PFAS. Regulated PFAS includes either PFAS that are intentionally added or PFAS in a product or product component at or above 100 parts per million (ppm), as measured by total organic fluorine. Manufacturers must also use the least toxic alternative when replacing regulated PFAS in food packaging. Food packaging is defined broadly as nondurable packaging, packaging components, and food service ware that is “comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers.”

Additionally, manufacturers of cookware must follow website disclosure and labelling requirements when a chemical on the Department of Toxic Substances Control (DTSC)’s “designated list” is intentionally added in the handle or food contact surface of a cookware product. The “designated list” includes “PFAS” as a class, along with 3,297 other chemical substances that DTSC has identified as candidate chemicals that exhibit a hazard trait or an environmental or toxicological endpoint. Since the start of this year, manufacturers of cookware sold in California are required to post on the website for cookware all of the following information:

• A list of all chemicals in the cookware that are also present on the designated list.
• The names of the authoritative list(s) referenced by the DTSC in compiling the designated list on which each chemical in the cookware is present.
• A link to the internet website for the authoritative list(s) identified above.

AB 1200 prohibits manufacturers from making claims that cookware is free of any specific chemical if the chemical belongs to a chemical group or class identified on the “designated list” unless no individual chemical from that chemical group or class is intentionally added to the cookware. For example, the website cannot say that a product is “PFAS-free” if it contains even one PFAS in the product, such as PTFE. This same prohibition will apply to cookware packages starting on January 1, 2024.

Also beginning January 1, 2024, cookware manufacturers must list on the product label the presence of any intentionally added chemicals on the designated list. The phrase “This product contains:” must introduce the list, which must also include a statement, in both English and Spanish, that reads: “For more information about chemicals in this product, visit,” followed by a link and quick response (QR) code to the informational website. Manufacturers are exempt from this product label disclosure requirement if the cookware has a surface area that cannot fit a product label of at least two square inches and has no exterior container, wrapper, tag, or other attachment providing product information. 

California Attorney General’s Enforcement Advisory Letter

The AG’s enforcement advisory letter informs manufacturers, distributors, and sellers (including retailers) of food packaging and cookware of new requirements established under AB 1200. According to the letter, failure to comply may constitute a violation of California’s Unfair Competition Law, Business and Professions Code section 17200 (UCL), Business and Professions Code section 17500, and other applicable laws. The AG warns that his office may bring an enforcement action seeking civil penalties, restitution, injunctive relief, or even criminal liability for failure to comply with AB 1200.

Regarding restrictions on food packaging, the letter clarifies that, under the California Health and Safety Code section 109000, subd. (b), AB 1200 prohibits businesses, including shops and restaurants selling take-out food, from distributing, selling, or offering for sale any “food packaging” that contains regulated PFAS. The AG also reiterates that manufacturers must replace regulated PFAS in food packaging with the least toxic alternative.

Further, the AG clarifies that AB 1200’s disclosure and labeling requirements for cookware only apply 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. The letter then restates the disclosure requirements and prohibition on “chemical free” claims on both the internet and product label. Manufacturers are reminded that exemption from the product label disclosure requirement does not also exempt them from including the required statement on the product website.

Tracking State PFAS Restrictions

States like California have been active in the past few years passing laws to regulate PFAS in products. So far, 12 states have enacted laws that ban or impose reporting or disclosure requirements for PFAS in products ranging from food packaging to textiles to cosmetics, cookware to juvenile products to carpets, rugs, and upholstered furniture. In 2023 alone, state lawmakers introduced over 200 new bills addressing PFAS, most of which sought to ban certain products containing intentionally added PFAS. State legislatures have articulated concerns about the health effects of PFAS and perceived harmful exposures to consumers, workers, and the environment stemming from these products.

While each state’s requirements differ to some extent, states have uniformly adopted the same sweeping definition of PFAS: a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. Additionally, no state has established any de minimis level or thresholds for intentionally added PFAS.

As states continue to move forward with emerging PFAS product restrictions, those who manufacture, distribute, and sell such products must prepare for the changing legal landscape. Below, we summarize the upcoming compliance dates for these state PFAS restrictions:

The sheer scope of these state laws has subjected potentially millions of products currently sold or distributed in states to various labeling, disclosure, and reporting requirements or bans. This trend creates challenges for product manufacturers and retailers alike. Companies have to ascertain which of their products are impacted, where those products are impacted, and how to gather the information they need to determine if even trace amounts of PFAS are in their products or in the materials used to manufacture their products.

The Hunton Andrews Kurth LLP (HuntonAK) PFAS in Products State Law Tracker is a publicly accessible tool to help companies track state statutes and regulations that ban or impose reporting or disclosure requirements for products containing PFAS. As state requirements for products containing PFAS continue to emerge, companies will need to regularly track these developments and prepare to assess the presence of PFAS in their supply chains. Businesses should also review each state’s laws and consult knowledgeable counsel to understand the nuances of each law. Because these laws are fast-changing and developing, it is incumbent on businesses to stay current as more laws change and new ones are adopted.