Last week, California’s Office of Environmental Health Hazard Assessment (OEHHA) announced that it will hold its annual meeting of the Developmental and Reproductive Toxicant Identification Committee (DARTIC), which will be held virtually on December 14, 2021. The meeting will be significant, as OEHHA plans to discuss whether two additional types of PFAS – PFNA and PFDA – should be added to the Proposition 65 list of regulated chemicals. We previously reported on several California PFAS actions with respect to other types of PFAS. OEHHA’s proposals thus far in 2021, once finalized, will add significant regulatory, compliance and litigation burdens on a wide array of business types. Given how prevalent PFAS are in thousands of products, if the actions proposed in the three notices take effect, the result may be a deluge of compliance and enforcement actions that could cost some companies hundreds of thousands or millions of dollars.

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.

California PFAS Actions Under Prop 65 – A Brief History

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 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. The public comment period for this notice will remain open until May 10, 2021.

OEHAA’s actions last week targeted PFNA and PFDA, and they issued the hazard identification document entitled “Evidence on the Male Reproductive Toxicity of Perfluorononanoic Acid (PFNA) and Its Salts and Perfluorodecanoic Acid (PFDA) and Its Salts.”  The public review and comment period for the document closes on November 15, 2021.

The intent of OEHHA and the state of California is clear. They wish to aggressively regulate PFAS, and they intend to do so well beyond just PFOA and PFOS, which are the subject of legislative or regulatory action in several states. There is little doubt that the various listings under Prop 65 will take place. While some determinations and listing could be made in 2021, it is likely that most of the determinations will be made in early 2022.

California PFAS Actions – Impact On Businesses

All of the above-referenced Prop 65 listings will add significant regulatory, compliance and litigation burdens on a wide array of business types. Important to note is that Prop 65 regulations that take effect 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. Given how prevalent PFAS are in thousands of products, if the California PFAS actions proposed in the various notices take effect, the result may be a deluge of compliance and enforcement actions that could cost some companies hundreds of thousands or millions of dollars.

While some may view this prediction with an eye of skepticism, the costs to businesses that stemmed from OEHHA’s listing of PFOA and PFOS as chemicals associated with reproductive toxicity shows that history is likely to repeat itself with new PFAS listings. The grace period for companies to come into compliance with respect to PFOA and PFOS ended on November 17, 2018.  In the three years that have passed since then, numerous companies have spend hundreds of thousands of dollars ensuring compliance and dealing with waves of violation notices for products that contained trace amounts of PFOA or PFOS. There is no reason to believe that listings for additional PFAS types will lead to a different result.

Conclusion

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. Failure to comply with any of the complex requirements under Prop 65 for any of the likely listed PFAS can lead to hundreds of thousands of dollars in costs.