Chemicals, Regulatory Developments

Prop 65 Is Coming for PFAS—California Companies, Take Note

Companies doing business in California that utilize per- and polyfluoroalkyl substances (PFAS) in their products or operations are advised to closely follow developments related to recent steps by the California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) to further regulate perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), and other PFAS under the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly referred to as Proposition 65 (Prop 65).

Prop 65 and PFASPFAS are synthetic chemicals used in many products for their ability to repel water, oil, and grease and to resist fire; they are also known as “forever” or “legacy” chemicals due to their longevity.

The OEHHA has taken three actions to further regulate PFAS.

On March 19, 2021, the OEHHA published a Notice of Intent “to list perfluorooctanoic acid (PFOA) (CAS RN 335-67-1) as known to the state to cause cancer” under Prop 65. The agency based this action upon a 2020 report by the National Toxicology Program (NTP) that concluded the chemical causes cancer.  The OEHHA requests public comment on the notice to be submitted through the OEHHA website. The comment period is open until May 3, 2021.

On March 26, 2021, the OEHHA published another notice announcing that “perfluorooctane sulfonate (PFOS) and its salts and transformation and degradation precursors” have been designated for review by the Carcinogen Identification Committee (CIC) of the OEHHA’s Science Advisory Board for possible listing under Prop 65 as a carcinogen.

A third notice announcing the review of perfluorodecanoic acid (PFDA) and its salts, perfluorohexanesulfonic acid (PFHxS) and its salts, perfluorononanoic acid (PFNA) and its salts, and perfluoroundecanoic acid (PFUnDA) and its salts by the Developmental and Reproductive Toxicant Identification Committee (DARTIC) of the OEHHA’s Science Advisory Board was published by the OEHHA on March 26, 2021. These chemicals have been selected for review due to potential reproductive toxicity.

The OEHHA is also seeking public comment upon both reviews until May 10, 2021. Comments may be submitted through the OEHHA’s website.

California’s Prop 65 list currently contains “more than 850 chemicals identified as being known to the state to cause cancer, birth defects, or other reproductive harm,” according to an article by Philadelphia, Pennsylvania-based law firm Morgan Lewis & Bockius LLP in Lexology.

“Proposition 65 has two primary substantive provisions: (1) a warning requirement and (2) a discharge prohibition,” according to the article. “The warning requirement provides that businesses with 10 or more employees must provide ‘clear and reasonable warnings’ before knowingly or intentionally exposing individuals in California to any of the chemicals that are listed as known to cause cancer or reproductive harm. While there is a 12-month grace period after final listing before the warning requirement is enforceable, the warning requirement would apply to all persons in the course of doing business, including manufacturers, distributers, and retailers (both [brick-and-mortar retailers] and online retailers). The discharge prohibition provides that anyone in the course of doing business within California may not knowingly discharge any listed chemicals into water or onto or into land where such chemical passes or probably will pass into any source of drinking water. There is a 20-month grace period after a formal listing of a chemical before the discharge prohibition takes effect.”