On November 9, 2017, on the heels of New Jersey’s move to set a maximum contaminant level for certain perfluoroalkyl substances, California’s Office of Environmental Health Hazard Assessment (OEHHA) added perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) to the list of chemicals known to the state of California to cause reproductive toxicity (also known as the Prop 65 list).

According to OEHHA, the listing of PFOA and PFOS is based on formal identification by the US Environmental Protection Agency that the chemicals cause reproductive toxicity. See Title 27, Cal. Code of Regs., Section 25306. OEHHA had issued a Notice of Intent to list PFOA and PFOS on September 16, 2016.

After a 12-month phase-in period, businesses that sell products into California will be required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to PFOA or PFOS. However, as noted in comments submitted on the September 2016 Notice of Intent, because the use of PFOA and PFOS have been phased out in the domestic manufacture of products and instead may simply be present in the incoming water supply or as impurities in raw materials, businesses may be forced to provide warnings on their products even though their products are intentionally manufactured using alternative chemistry. This concern is amplified by the fact that until OEHHA sets a maximum allowable dose level (“MADL”), businesses are left guessing what level of exposure is “safe” and thus whether a warning is necessary.

OEHHA generally makes an effort to propose MADLs within one year of listing a chemical. According to OEHHA, the Agency will consider all relevant information in its efforts to establish MADLs for PFOA and PFOS. Nevertheless, businesses must begin complying with the warning requirement in November 2018, even if OEHHA has not yet established an MADL.