May 18, 2026|Product Liability Insider
By: Anne Marie Ellis, May 18, 2026
California’s Health & Safety Code § 108970 has quickly become more than a compliance obligation—it is now a litigation driver. In 2026, we are seeing a noticeable influx of plaintiff demand letters targeting apparel, accessories, and other textile products based on alleged PFAS content. At the same time, plaintiffs are not limiting these theories to California. New York’s Environmental Conservation Law § 37‑0121 is being used in parallel—often relying on the same testing and product narratives.
Section 108970: Why It Matters
Section 108970 prohibits the sale of new textile articles containing “regulated PFAS”, defined as:
- Intentionally added PFAS, or
- PFAS detected above 100 ppm (2025) → 50 ppm (2027) measured as total organic fluorine (TOF)
It also requires:
- Use of a “least toxic alternative”, and
- A certificate of compliance for downstream sellers
Bottom line: this is not just a product ban—it is a testing and documentation statute.
2026 Trend: Demand Letters Are Following the Statute
We are seeing consistent themes in 2026 demand letters tied to Section 108970:
- Testing-driven allegations
Plaintiffs rely on TOF screening or similar testing to claim PFAS presence. - Certification challenges
Requests for (and attacks on) the required certificate of compliance are becoming central. - Component-level focus
Claims often target coatings, laminates, and finishes—where PFAS functionality typically sits. - Stacked legal theories
Section 108970 claims are paired with consumer protection and “greenwashing” allegations.
New York’s ECL § 37‑0121: Same Playbook, Different Hook
New York’s ECL § 37‑0121 similarly restricts PFAS in apparel and textiles, but does not include a defined TOF threshold like California.
That distinction is important:
- California (Section 108970):
Threshold-based claims (100 ppm / 50 ppm TOF) - New York (ECL § 37‑0121):
More flexible allegations based on intentional use or presence of PFAS
Despite this difference, plaintiffs are using both statutes the same way in 2026—leveraging testing, product functionality (e.g., water resistance), and marketing claims to support demand letters.
Key Takeaways
- Expect demand letters—not just regulatory inquiries
Section 108970 is now firmly in the plaintiff playbook - Certificates matter
If you cannot produce a defensible certification, that becomes the issue - Focus on coatings and treatments
That is where most claims are being directed - Plan for multi-state exposure
Plaintiffs are increasingly pairing Section 108970 + ECL § 37‑0121
Bottom Line
Section 108970 has evolved into a plaintiff-facing enforcement tool, and the 2026 surge in demand letters confirms it. With New York’s ECL § 37‑0121 now being used alongside it, PFAS compliance for textiles is no longer a California-only issue—it is a multi-state litigation risk that turns on testing, documentation, and supply chain control.
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