PFAS Expanding the Targets for California’s Proposition 65 Liability

By on January 11, 2023

Proposition 65 Background

The California law commonly referred to as “Proposition 65” prohibits businesses from knowingly and intentionally exposing any individual in the State to a listed chemical without first giving a clear and reasonable warning.  Violations of Proposition 65 can lead to penalties of up to $2500 per violation per day, and can carry the possibility of paying a plaintiff attorneys’ fees.  Proposition 65 provides private parties the right to enforce this law on behalf of the People of the State (if the State chooses not to), which has spawned a cottage industry of enforcement plaintiff attorneys capitalizing upon this plaintiff-friendly law.

PFAS Chemicals Added to the List

Under Proposition 65, the State maintains two lists of chemicals: one for carcinogens and another for reproductive toxicants.  The List now exceeds over 900 such chemicals and the State updates the List annually with new additions. 

PFAS (per- and polyfluoroalkyl substances) are a class of thousands of chemicals, and they are found in many different consumer, commercial, and industrial products.  PFAS appear set to take center stage on the Proposition 65 landscape, both from a litigation and regulatory perspective.  In 2017, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) were identified by the State as reproductive toxins and added to the List.  On December 31, 2021, the State added perfluorononanoic acid (PFNA) to the List.  Following a one-year grace period, enforcement for PFNA can now begin on January 1, 2023.  The State is also considering several other PFAS: PFHxS and PFDA.  As research concerning the impacts of many PFAS is intensively proceeding, we would expect the State may identify further PFAS to add to the List in the near future.

Products of Concern

PFAS have many beneficial properties, which has led to its use in many different industries and for varied products.  PFAS can impart oil, water, stain and soil repellent barriers, chemical and temperature resistance, and surfactant properties to products, some of which are considered essential to health, safety, or modern life.  The following are examples of some common products:

  • Water resistant clothing and footwear
  • Upholstery and carpeting
  • Cosmetics and dental products
  • Electronics
  • Paints and other coatings
  • Firefighting foam, and equipment and protective clothing
  • Medical products
  • Paper and cardboard, including food packaging

Recent Notices

Gordon Rees Scully Mansukhani regularly monitors the Proposition 65 Notices of Violation to keep on top of any trends, so that we may promptly inform our clients who may be impacted.  Significantly, we have noticed an important trend over the last 2 months: a dramatic increase in the number of Notices targeting products with PFAS.  Recent Notices have targeted outerwear clothing and rain jackets, baby bibs, bath pillows, duffel bags, umbrellas, shower liners, crib mattress pads, tablecloths, paper straws, and numerous cosmetics.

Tips for Companies to Help Protect Against Proposition 65 Liability

To minimize the potential for Proposition 65 liability, companies should consider the following:

Working with Suppliers to obtain maximum protection: companies obtaining products from upstream suppliers should obtain the best information possible from those suppliers regarding the presence of PFAS in the product, and confirm Proposition 65 compliance in its contract.

Product Testing: Depending upon the circumstances, product testing can be considered.  Attorney involvement should also be considered if testing, as attorney-client privileges may be important.  Also, companies obtaining product from upstream suppliers should request any testing results conducted by the suppliers.

Proper Warnings: Proposition 65 provides a “safe harbor” for those products containing a compliant warning.  The law allows for both long-form and short-form warnings.  The long-form warnings require identification of at least one listed chemical, whereas the short-form warnings generically identify carcinogens and/or reproductive toxicants.  When considering warnings, in the quest to avoid Proposition 65 liability, some companies will provide a Proposition 65 warning regardless of any specific information actually requiring the warning.  We recommend extreme caution attempting to achieve Proposition 65 compliance by providing long-form warnings identifying PFAS without information confirming the presence of PFAS.  The regulatory landscape for PFAS is evolving rapidly, and some states, including California, and have banned the use of PFAS in certain products; thus, a long-form Proposition 65 warning concerning PFAS (without any specific supporting data) raises the potential for triggering liability under other laws.

GRSM regularly counsels clients seeking to comply with Proposition 65 and is available to assist any company seeking advice to maximize its liability protection.

Filed under Uncategorized Tagged with , ,

California continues on the PFAS regulatory vanguard by banning PFAS in Cosmetics

By on November 23, 2020

On October 1, 2020, California passed a law identified as the Toxic Free Cosmetics Act. The Act will prohibit, beginning on January 1, 2025, the manufacturing or selling of any cosmetic product with any intentionally added amount of 24 specified chemicals. The specific list of chemicals includes certain phthalates, formaldehyde, mercury, and PFAS (certain per- and polyfluoroalkyl substances). Although some states have previously passed legislation banning some of the specified chemicals in cosmetic products (e.g., in children’s products), California is the first state to pass such a broad band as to cosmetics in general, and specifically to PFAS.

This is not the first time the cosmetics industry has had to respond to environmental regulatory developments in California. Under California’s Proposition 65 law (“Prop 65”), cosmetics have been a frequent target for consumer bounty hunter actions. The cosmetics industry has generally taken steps to comply with Prop 65 by reducing the concentrations of Prop 65 chemicals or providing the required Prop 65 warnings under law. Nevertheless, the Toxic Free Cosmetics Act will no longer allow the option of a Prop 65 warning, which will require the cosmetics industry to now eliminate (not reduce) the 24 listed chemicals (excepting unavoidable trace quantities).

The inclusion of PFAS on the list of 24 chemicals is of particular interest, as California has also been on the forefront of other environmental regulatory actions concerning PFAS. PFAS includes over 5000 different compounds that have been used in a wide variety of industries. PFAS has recently been reported by the US Department of Health and Human Service’s Agency for Toxic Substances and Disease Registry (“ATSDR”), based on various publications, as potentially causing reproductive and developmental effects in animals, and the EPA has identified limited epidemiological findings concerning possible immune system and thyroid disruption, as well as cancer. Nevertheless, the epidemiological evidence concerning PFAS is very limited and currently developing.

PFAS has been used in many common consumer and industrial products, such as carpet, paints, food packaging, stain resistant sprays, and non-stick cookware. PFAS was also used as a fire-fighting compound in aqueous film forming foam, which served as a very effective fire extinguisher, and has been widely used by the military, airports, and other firefighters throughout the country. The broad uses of PFAS has resulted in detections in soil and drinking water aquifers throughout the United States.

The regulatory framework for addressing PFAS is evolving rapidly. For better or worse, California has stepped to the forefront. For example, on September 29, 2020, California passed a law banning the manufacture, sale and use of PFAS firefighting foam in most applications starting on January 1, 2022. In July 2020, the California Department of Toxic Substances Control released a proposal to regulate plant fiber-based food packaging containing PFAS and has been holding public workshops to develop such regulations.

California’s aggressive regulation of PFAS has also extended to the environmental presence of PFAS in drinking water. The EPA has not yet set a maximum contaminant level (“MCL”) in drinking water for PFAS. Instead of setting MCLs, EPA established health advisory levels for PFAS, which equate to 70 parts per trillion (ppt) in drinking water. As the threshold is advisory, it is not mandated; however, many states have adopted the EPA’s advisory level of 70 ppt.

California, nevertheless, stepped out in front of both the EPA and all other states. In February 2020, California’s State Water Resources Control Board reduced the response levels for PFOA and PFOS to 10 ppt and 40 ppt, respectively. Response levels are advisory levels above which California recommends taking a water source out of service. As day follows night, the removal of drinking water sources from service has resulted in environmental litigation concerning the recovery of associated costs, as a wave of PFAS litigation concerning both environmental releases and products liability is beginning to roll across the country.

Filed under California, Environmental, PFAS

California’s Proposition 65 Runs Amok with Addition of BPA

By on April 4, 2016

plastic-bottlesOn May 11, 2015, the California Office of Environmental Health Hazard Assessment (OEHHA) listed Bisphenol A (BPA) as a reproductive toxicant to be added to the list of chemicals subject to Proposition 65.  Given the widespread use of BPA in numerous consumer applications (e.g., plastics, adhesives, sealants, epoxy resin liners in food containers, and thermal paper such as the paper used to print cash register receipts), the addition of BPA is a significant development for a large number of businesses evaluating compliance with Proposition 65 with respect to BPA in products.

Proposition 65 provides a 12-month period from the date of listing before warnings are required.  Thus, warnings for exposures to BPA will be required starting on May 11, 2016, unless a person in the course of doing business can show that exposures are below the Maximum Allowable Dose Level (MADL) safe harbor limit for BPA.

OEHHA Takes Action with Deadline Approaching

As the deadline for the warning requirement is quickly approaching, OEHHA recently took emergency action with respect to the listing of BPA.  The first action was the issuance of a notice of proposed rulemaking to establish a MADL for dermal exposures from solid materials containing BPA.  The second was an emergency action to allow for the temporary use of a standard point-of-sale warning for BPA exposures from canned and bottled foods and beverages.

Proposed MADL

The warning requirements under Proposition 65 do not apply if a business can show that exposures from a product are less than the MADL established by OEHHA, which puts the business in a “safe harbor.”  Based on OEHHA’s review of the scientific studies, it has proposed a MADL of 3 micrograms/day (dermal exposure from solid materials) for BPA.  Significantly, the proposed MADL of 3 micrograms/day is a level believed to be above that which most people would encounter from a product in normal use.Bisphenol_A

Comments on the proposed MADL are due to OEHHA by May 16, 2016.  Note that this means that the proposed MADL will not be finalized until after the May 11, 2016 trigger date for warnings.

OEHHA Allows Uniform Point-of-Sale Warnings for Canned and Bottled Food and Beverages

OEHHA attempted to develop a MADL for oral exposure (as opposed to the dermal exposures discussed above) that could have precluded the need for an emergency action on the warnings.  However, OEHHA was unable to work through the technical, practical, and timing issues associated with adopting an oral exposure MADL.  Consequently, to avoid potential removal of many food products from the shelves in markets, OEHHA’s proposed solution, as presented in the emergency action, is to amend the regulations to provide for the temporary use of a standard point-of-sale warning as a compliance option.

The compliance option contemplates signs no smaller than 5 x 5 inches with the following warning language:

WARNING: Many cans containing foods and beverages sold here have epoxy linings used to avoid microbial contamination and extend shelf life. Lids on jars and caps on bottles may also have epoxy linings. Some of these linings can leach small amounts of bisphenol A (BPA) into the food or beverage. BPA is a chemical known to the State of California to cause harm to the female reproductive system.  For more information go to:  www.P65Warnings.ca.gov/BPA.

OEHHA’s actions will have a significant impact on businesses seeking to comply with Proposition 65 for products carrying the potential for exposures to BPA.

Filed under Bisphenol A, BPA, California Office of Environmental Health Hazard Assessment, Department of Toxic Substances Control, Duty to Warn, Environmental, environmental exposure, OEHHA, Prop 65, reproductive harm