Out of the Frying Pan: AB 1200 and the New Online and Physical Labeling Requirements for California Cookware
AB 1200 – Client Update
If there’s one thing lawyers love, it’s reporting on new laws that go into effect on January 1 of each new year—ourselves included. But one January 1 change that may have flown under the radar for many is the effective date of the first part of California Assembly Bill 1200 (“AB 1200”)—a new California law that imposes extensive disclosure requirements on manufacturers of cookware and food packaging items that contain listed chemicals with toxic properties.
The food packaging requirements are the smaller portion of AB 1200 and easier to parse. As of January 1, 2023, no “food packaging” in California may contain “regulated perfluoroalkyl or polyfluoroalkyl substances or PFAS.” Cal. Health & Saf. Code § 109000(b). “Food packaging” is broadly defined to include any food or beverage storage item such as take out containers, wrappers, utensils, straws, and so on. See id. § 109000(a)(1). “Regulated . . . PFAS” is defined as organic chemicals containing at least one fully fluorinated carbon atom where the manufacturer has “intentionally added” it to the product in question, or where the product has more than 100 parts per million of PFAS.
The stated legislative purpose was to bring food packaging requirements into congruence with pre-existing law that prohibits bisphenol A in baby bottles and cups and pre-existing (but not yet effective) law that prohibits PFAS in cosmetic products.
This is where it gets interesting. The cookware portion of AB 1200 imposes two distinct requirements: internet disclosure requirements and product label requirements. The former went into effect on January 1, 2023, the latter will not go into effect until a year later. Id. § 109011-109012.
The internet posting rules require that manufacturers of any “cookware” sold in California that contains any intentionally added chemicals that appear on the list of candidate chemicals published by the California Department of Toxic Substances Control (“DTSC”) in the “cookware surface” or “handle” of the cookware product to provide a written warning on the “internet website for the cookware.” Id. § 109012. That written warning must contain the names of all listed chemicals, the names of the “authoritative lists” from which the DTSC candidate list pulls the listed chemicals, and a link to the websites for each authoritative list. Id. § 109012(a)-(c). “Cookware” is broadly defined to mean “durable houseware items” used to “prepare, dispense, or store food, foodstuffs, or beverages.” “Cookware surface” is any part of the cookware that touches the food or beverage. “Handle” is undefined, but presumably has its ordinary meaning to include the handles of pots, pans, and utensils.
As for product labeling requirements, going into effect January 1, 2024, the triggering mechanism is the same as for internet posting: the presence of an intentionally added candidate chemical in the cookware surface that comes into contact with food or beverages or the product handle. Id. § 109011(a). If said chemical is present, the manufacturer must provide a warning on the product label that provides (1) a list of the candidate chemicals the product contains; (2) a hyperlink to the website that provides the internet posting requirement information under section 109012, with a short preamble in both English and Spanish, and (3) a QR code that links directly to the internet posting requirement information. Id. This information also must be visible on the “product listing for online sales.” Id. § 109011(b). “Product label” is defined as “a display of written, printed, or graphic material that appears on, or is affixed to, the exterior of a product, or its exterior container or wrapper that is visible to a consumer, if the product has an exterior container or wrapper.”
The statute also provides a small exemption for cookware that either lacks enough surface area to ft a product label of two square inches, or does not have exterior packaging or a tag with information about the cookware. Id. § 109011(c). Products exempt from the physical product labeling requirement must still provide the required information on the online listing for the product under section 109011(b).
Unlike other consumer protection “right to know” statutes related to toxic chemicals, such as California’s Proposition 65, AB 1200 currently has no statutory private right of action. Even regarding public enforcement, AB 1200 also contains no provisions for statutory damages, penalties, or attorneys’ fees. In fact, the only gesture toward enforcement provides simply that cookware not in compliance with the posting/labeling requirements “shall not be sold, offered for sale, or distributed in the state.” Id. § 109014. This begs the question of what happens if a manufacturer violates the cookware provisions—would a shipment of noncomplying cookware to the Port of Los Angeles be seized? Would cookware in violation be sent back to its point of origin? Would it be destroyed? Who is the agency in charge of enforcing compliance? Does “offered for sale . . . in the state” encompass websites that are visible in California that would be subject to blockage if not in compliance with the posting requirements? These are all open questions in this newborn statute, and only time will tell how the State of California will enforce its provisions.
The ambiguities inherent in this statute will likely lead to litigation over when chemicals are “intentionally added” to the handle or cookware surface. The DTSC candidate chemical list is nothing if not overinclusive. Numerous basic elements, such as iron and chromium, are listed candidate chemicals, the two of which just so happen to be the key components of stainless steel, a popular material in pots and pans. Does using stainless steel, a common material, in the handle of a pot or pan require an internet posting under the statute? Or is it exempt as iron and chromium were not “intentionally added” because their inclusion is incidental to the usage of stainless steel? The statute’s definition of “intentionally added chemical” leaves plenty of room for argument and interpretation: “a chemical that a manufacturer has intentionally added to a product that has a functional or technical effect in the product, including the components of intentionally added chemicals and intentional breakdown products of an added chemical that also have a functional or technical effect in the product.” Id. § 109010(c).
Going one level deeper, the breadth of the DTSC candidate chemical list as applied to cookware—particularly “handles” thereto—is also subject to challenge. For example, iron is only listed as a candidate chemical because it is a pollutant under the Clean Water Act. No one would argue that iron is safe to have in drinking water, but it is dubious that the prohibition of iron in drinking water should be extended such that iron is viewed as a toxic chemical when ensconced in the alloy structure of stainless steel in the handle of a saucepan. The “piggybacking” of AB 1200 on the DTSC candidate list without any nuances or carveouts, may be subject to court challenge by manufacturers.
AB 1200 imposes significant labeling burdens on manufacturers of cookware sold in California. Although the consequences for noncompliance are ill-defined at this point in time, manufacturers would do well to comply as much as possible with the statute until those consequences are clarified. That said, manufacturers that are not yet in compliance can take some comfort in the fact that the plaintiffs’ bar does not yet have a reason (or a right) to pursue civil lawsuits for violations of the statute.
If you are a cookware manufacturer with questions about AB 1200 compliance, please reach out to our office to discuss.