iDecember 2021 saw three significant actions taken by the state of California with respect to PFAS; specifically, Prop 65 PFAS determinations that may have significant impact on businesses. Two of the determinations will further increase risks to businesses of enforcement actions and potential litigation stemming from the sale of products that contain PFOS and PFNA. Important to note is that the Prop 65 regulations are not applicable only to companies situated in California; rather, they apply to any company (even internet businesses) that sell products to anyone in the state of California.
What Is Proposition 65?
California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65” or “Prop 65”) was passed with the intention of providing consumers with information regarding potentially cancer-causing agents in products that would allow consumers to make an informed decision as to whether to purchase the product. Proposition 65 requires “clear and reasonable” warnings to be placed on products that contain a chemical that the State of California determines may be cancer-causing or cause reproductive issues.
The list of chemicals currently on the Prop 65 list now numbers at more than 800, with new chemicals being added regularly. The California Office of Environmental Health Hazard Assessment (OEHHA) is the agency tasked with making determinations as to the chemicals that will be regulated under Prop 65.
Prop 65 penalties can be as high as $2,500 per violation per day. As companies often face the added prospect of paying the other side’s attorney fees, most Proposition 65 matters carry great financial risk and are very expensive to litigate.
Prop 65 PFAS Actions To Date
On November 10, 2017, OEHHA listed perfluuorooctanoic acid (PFOA) and perfluuorooctanesulfonic acid (PFOS) as substances that have a recognized reproductive toxicity by the state of California. This was a significant Prop 65 PFAS step, as PFOA and PFOS, while no longer manufactured in the United States, are still widely used internationally and are incorporated into products that are ultimately sold in California. Products sold in the state of California that contained PFOA and PFOS, regardless of where they were made, were required to incorporate warnings established by OEHHA identifying the reproductive toxicity of the chemical(s) in the consumer good.
On March 19, 2021, OEHHA published a notice of intent to list PFOA as a chemical that causes cancer. Just one week later, March 26. 2021, OEHHA published a similar notice of intent to review PFOS for carcinogenic properties. On the same day, OEHHA published a notice announcing its intent to conduct a review of four additional PFAS (PFDA, PFHxS, PFNA, and PFUnDA) for possible reproductive toxicity. The notice is a trigger for the potential listing of all four chemicals under Prop 65.
On December 22, 2021, OEHHA approved the listing of PFOS as a carcinogen under the Prop 65 laws. The warning requirement for significant exposures to this chemical will take effect on December 24, 2022.
Effective December 31, 2021, PFNA will be listed as a male reproductive toxicant under the Prop 65 laws, which is the result of a December 14, 2021 vote by the state’s Developmental and Reproductive Toxicant Identification Committee (DARTIC), which voted 6-2 to add PFNA to the Prop 65 list. However, the DARTIC declined to list PFDA in a vote with 5 noes and 3 abstentions. The panel relied in part on a hazard identification document prepared by OEHHA on the chemicals to make its decisions.
Prop 65 PFAS Decision Impacts On Businesses
Companies that were already testing products, conducting due diligence to determine whether any of its products contain PFOA, PFOS, or PFNA (or any of the other Prop 65 PFAS under consideration), and ensuring proper warning labels on applicable PFAS-containing products to comply with Prop 65’s strict regulatory requirements must now factor in the PFOS carcinogenic determination and the PFNA reproductivity determination. This will require modifications to any necessary warning labels. The requirements for the language, size, lettering, etc. of the warning labels is highly regulated by OEHHA and the Prop 65 regulations, and failure to comply can lead to civil enforcement suits brought by the state attorney general, local government attorneys or citizen enforcers of the law. Any fines associated with non-compliance can apply per product per day of violation, which can quickly add up to significant costs based on the scope of product distribution. Numerous companies have spend hundreds of thousands of dollars ensuring compliance and dealing with violation notices for products that contained PFAS that are regulated by the Prop 65 laws.
Companies doing business in California must heed the Prop 65 notices on PFAS and act now to determine if any products sold in the state of California contain any of the above-listed PFAS. Supply chain analysis is a critical part of the process. This is the first crucial step in determining further action, if any. For companies with products that contain the PFAS that are the subject of the notices, precise warnings will need to be adhered in the proper way and location (whether on the product packaging, on a website prior to the consumer purchasing the product, etc.) that may not be as simple as it sounds.
