The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) recently took steps pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65, to further regulate perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), and other perfluoroalkyl substances (PFAS).
First, OEHHA published a notice of intent proposing to list PFOA as a chemical known to the state to cause cancer. PFOA is one of the more prevalent and widely known perfluoroalkyl substances, a group of synthetic, non-naturally occurring chemicals predominantly used in consumer and commercial products for their fire resistant and oil, grease, and water repellency characteristics. OEHHA’s listing proposal is based on the results of the National Toxicology Program’s (NTP’s) May 2020 report finding evidence of carcinogenic activity when PFOA was administered in feed to rats. OEHHA is requesting public comment as to whether PFOA meets the criteria set forth in Proposition 65. The period for public comment is open from now until May 3, 2021. Comments may be submitted on the OEHHA website.
Second, OEHHA published a separate notice less than a week later announcing a review of the carcinogenic hazards of PFOS and its salts and transformation and degradation precursors in advance of possible listing under Proposition 65. The Carcinogen Identification Committee (CIC) will conduct the review.
PFOS is another widely known perfluoroalkyl substance used in consumer and commercial products for its fire resistant and oil, grease, and water repellency characteristics. OEHHA is providing the public a 45-day data call-in period open from now until May 10, 2021, to submit information relevant to the assessment of the evidence of carcinogenicity. Comments may be submitted on the OEHHA website. Hazard identification materials will be made available to the public for comment prior to the CIC’s consideration of the chemical for possible listing.
Third, OEHHA published a notice announcing a review of the reproductive toxicity hazards 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 in advance of possible listing under Proposition 65. The Developmental and Reproductive Toxicant Identification Committee (DARTIC) will conduct the review.
PFDA, PFHxS, PFNA, and PFUnDA are four perfluorochemicals used in consumer and commercial products for their heat, oil, stain, grease, and water resistant properties. OEHHA is providing the public a similar 45-day data call-in period open from now until May 10, 2021, to submit information relevant to the assessment of the evidence of reproductive toxicity. Comments may be submitted on the OEHHA website. As with the CIC, the DARTIC will make materials available to the public for comment prior to final consideration of the chemicals for listing.
If any of these PFAS are added to the Proposition 65 list, they would join a list of more than 850 chemicals identified as being known to the state to cause cancer, birth defects, or other reproductive harm.
Proposition 65 has two primary substantive provisions: (1) a warning requirement and (2) a discharge prohibition. 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.
In light of the OEHHA’s proposal, companies doing business in California that know of PFAS in products, other exposures to PFAS, or discharges of PFAS associated with their operations will want to pay close attention to these developments.
If you have any questions regarding PFAS and/or Proposition 65 or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Los Angeles
Rick R. Rothman
Deanne Miller
Jim J. Dragna
Orange County
Collie James, IV
San Francisco
Ella Foley Gannon
Princeton
John McGahren
Stephanie R. Feingold
Laurie Matthews
Washington, DC
Duke K. McCall