California Menstrual Product PFAS Ban Brings Compliance Hurdles

California’s new law requiring companies to remove both intentionally and unintentionally added PFAS from menstrual products poses a unique regulatory challenge that will be difficult to comply with, according to attorneys and trade groups.

Others states have banned purposely added per- and polyfluoroalkyl substances (PFAS) in consumer products, but it’s “very uncommon” to regulate chemicals that are picked up unknowingly in the supply chain, said Megan Baroni, partner at Robinson & Cole LLP’s environment practice.

Businesses can try to identify where the unintentional PFAS are coming from and end contracts with those suppliers. But the pervasiveness of the chemicals, coupled with the fact that they’re often unevenly distributed throughout shipments, leaves a lot of questions, Baroni said.

California Gov. Gavin Newsom (D) on Sept. 30 signed the T.A.M.P.O.N Act, which bans manufacturing or selling tampons, pads, period underwear, and other products containing regulated per- and polyfluoroalkyl substances (PFAS) illegal by 2025 if the chemicals are intentionally added and by 2027 overall.

The bill garnered support from the American College of Obstetricians and Gynecologists, the California Water Association, and others. But manufacturing groups told legislators that the law would unfairly punish companies that don’t purposely add PFAS to their products.

Many component suppliers don’t willingly disclose whether their products have any PFAS at all, which creates “what some would say is an impossible diligence burden,” John Gardella, chair of CMBG3 Law’s PFAS, Environmental, Risk Management & Consulting, and ESG practice groups, said in a statement.

Companies will likely struggle to “build a business around compliance,” Baroni said.

PFAS encompass thousands of compounds, some of which have been linked to birth defects, cancer, and other health problems. When it comes to toxic chemicals, there’s “no level at which there’s no risk,” especially for reproductive-age people who use menstrual products, said Tracey Woodruff, director of the Program on Reproductive Health and the Environment at the University of California San Francisco.

Compliance Challenges

Keeping intentionally added PFAS out of personal care products is important, but the new standards are likely “too much too soon,” said Lance Hastings, president and CEO of the California Manufacturers & Technology Association.

“We’re being held liable for something we’re not aware of,” he said.

Lawsuits concerning PFAS in personal care products aren’t unheard of. Period underwear brand Thinx last year settled claims related to the presence of PFAS in its products, and environmentalists late last month sued menstrual products manufacturer Edgewell Personal Care Brands LLC in California state court over similar allegations.

The manufacturing association and its members will work to comply with California’s new law, but the two-year timeline is difficult to manage, Hastings said.

“The law is punitive,” John Hewitt, the Consumer Brands Association’s senior vice president of state affairs, said in an emailed statement. “An enforcement mechanism for unintentional PFAS should recognize the reality that it is detected in air emissions, wastewater, soils, surface water, and groundwater and can also be found with no apparent source.”

Manufacturers’ first step should be to conduct a desktop analysis to see whether PFAS compounds are currently identifiable throughout the supply chain, Baroni said. Manufacturers should also look at which compounds come up repeatedly in the intentionally added category, versus which compounds are more obscure and not intentionally added, she said.

The law directs California Department of Toxic Substances Control to set limits for the amount of PFAS that can exist in menstrual products. But testing for those chemicals poses its own compliance challenge.

The new law defines PFAS as a class of chemicals with at least one fully fluorinated carbon atom—its broadest definition—so companies could use a “total fluorine test,” Gardella said in his statement. But that test would simply show whether a product contains fluorine, and many other chemicals besides PFAS contain that element, he said.

Testing for fluorine leaves companies to figure out which specific PFAS, if any, is in a product, where in the supply chain it originated, and how to stop it in the future, Baroni said.

Tests may also become more advanced in coming years, which means companies could risk false advertising, consumer fraud, and even personal injury lawsuits for products they originally believed contained no PFAS, according to Gardella’s statement.

The California Department of Toxic Substances Control is mandated to publish a list of acceptable testing methods by 2027 and adopt regulations expanding on the statute by 2029. Companies may take a second stab at getting more accommodations during the rulemaking process, Baroni said.