In Part I and Part II of this blog series, we introduced and discussed per- and polyfluoroalkyl substances (PFAS), commonly referred to as “forever chemicals,” which have been recent targets of consumer class actions and regulatory enforcement due to their alleged human health risks. As a quick refresher, PFAS includes a class of more than 4,700 man-made chemical compounds used in a wide range of products – including cosmetics, food packaging, textiles, carpeting and nonstick cookware – due to their water- and stain-resistant properties. PFAS do not easily break down and therefore persist in the environment. While we previously covered legislation that would phase out or ban PFAS in such products over the coming years, several of these chemicals currently are subject to consumer product warning requirements under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 – commonly known as Proposition 65.
Brief Overview of Proposition 65
Proposition 65 requires that a “clear and reasonable warning” be provided to a person prior to exposure to a chemical “known to the state to cause cancer or reproductive toxicity.” The law does not ban or otherwise regulate the sale of any product in California. Instead, it simply requires a warning when necessary. While there are limited exemptions to Proposition 65, most notably for companies with fewer than 10 employees, each company in the supply chain, from manufacturer to retailer, has potential Proposition 65 liability for failing to provide a required warning.
A violation of Proposition 65 may result in a civil penalty of up to $2,500 per day per violation (often interpreted as per consumer sale). Most Proposition 65 enforcement is by serial “citizen enforcers” who seek recovery of civil penalties (which are shared with the state) and attorney’s fees. More than 3,000 Proposition 65 violation notices were issued by these citizen enforcers in 2021 alone.
Proposition 65 Warnings and PFAS
In November 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) added two specific PFAS chemicals – perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) – to the Proposition 65 chemical list as chemicals known to cause reproductive harm. Although these chemicals have long been phased out domestically, they often are still found in products produced abroad and, despite federal import restrictions, in products entering the United States. The chemicals not only may be intentionally added without the knowledge of importers but also may be found as unintentional contaminants in a variety of products, especially those containing post-consumer recycled materials. Businesses selling such items in or into California may therefore unknowingly be subject to Proposition 65’s consumer product warning requirements. Indeed, companies may not find out that PFOS or PFOA is present in their product until after notification from a plaintiff who has performed product testing in bringing a Proposition 65 case.
More recently, on Dec. 24, 2021, and Feb. 25, 2022, respectively, OEHHA also included PFOS and PFOA on the Proposition 65 chemical list as known carcinogens. Importantly, once this updated listing becomes effective in the coming year, companies that already provide Proposition 65 warnings for PFOS or PFOA will need to update their warnings to also account for carcinogenic exposure.
OEHHA’s review of PFAS chemicals for inclusion under Proposition 65 does not appear to be slowing down. Indeed, on Dec. 31, 2021, OEHHA added perfluorononanoic acid (PFNA) to the Proposition 65 chemical list for reproductive harm and has also considered three other PFAS chemicals – perfluorodecanoic acid (PFDA), perfluorohexanesulfonic acid (PFHxS) and perfluoroundecanoic acid (PFUnDA) – for listing as well. It therefore appears likely that OEHHA will continue adding PFAS chemicals to the chemical list in the coming years as additional toxicity research is published.
Addressing PFAS Proposition 65 Requirements
Companies that sell products in or into California should assess whether their products contain listed PFAS chemicals and, if so, whether a warning is required. Product testing may be an option for some companies but could quickly become cost-prohibitive based on the number of products or product lines sold in California. However, there are other steps companies can take to safeguard themselves from potential violations.
- Companies can attempt to push this burden upstream by requiring suppliers to certify that their products do not contain listed PFAS chemicals and include indemnities in purchase contracts in the event of a violation.
- The Proposition 65 regulations include a mechanism to pass the warning requirements to downstream entities, including retail sellers. This process includes providing written notice of the product exposure and all required warning materials, among other requirements. This notice must also be renewed annually.
- To the extent possible, companies may want to consider reformulating products to remove any intentionally added PFAS chemicals. Companies also may want to periodically audit product suppliers to ensure that unintentional PFAS contamination is not present in their products. Proposition 65 compliance is burdensome, and removing the offending chemicals, where possible, would potentially save hundreds of thousands of dollars in company oversight and labeling costs.
- If providing a warning is unavoidable, companies should pay close attention to Proposition 65’s warning requirements – including with respect to how the warning is transmitted, warning content and font size – in order to avoid challenges from state and citizen enforcers.