Proposition 65 PFOA and PFOS Warning Requirements Take Effect November 10

Environmental Law

Starting November 10, 2018, businesses must start warning individuals about exposures to perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) pursuant to the California Safe Drinking Water and Toxic Enforcement Act of 1986, better known as “Proposition 65.”

Proposition 65 requires businesses with ten or more employees to provide a clear and reasonable warning to individuals before knowingly and intentionally exposing them to a chemical listed as known to cause cancer or reproductive toxicity, including exposures from consumer products, in the workplace and in the environment. Proposition 65 also prohibits California businesses from knowingly discharging or releasing listed chemicals into sources of drinking water.

On November 10, 2017, the California Office of Environmental Health Hazard Assessment added PFOA and PFOS to its list of chemicals known to the state to cause reproductive toxicity. Businesses are required to initiate warnings under Proposition 65 within 12 months of the addition of chemicals to this list, such as with PFOA and PFOS. And by July 10, 2019—within 20 months of the chemicals’ listing—businesses will be prohibited from knowingly discharging or releasing PFOA and PFOS into sources of drinking water.

PFOA and PFOS are part of the group of fluorinated organic chemicals referred to as per- and polyfluoroalkyl substances (PFASs). PFASs include surfactants that have been used to confer stain-, grease- and water-resistance in a wide variety of consumer products, including carpets, textiles, leather, nonstick cookware, food packaging, cosmetics and personal care products. PFASs are also used in firefighting foam, photo imaging, metal plating, semiconductor coatings, aviation hydraulic fluids, medical devices, insect baits, oil production, and printer and copy machine parts. PFASs have gained widespread attention given growing concerns over the persistence of such chemicals at low levels in the environment. The U.S. Environmental Protection Agency as well as many states, such as California, are moving to promulgate measures to curb the use of PFASs and institute standards for limiting and remediating their release into drinking water and the environment.

Why it matters: PFASs are found across a wide spectrum of products. Businesses not only need to take care to comply with Proposition 65 warning requirements for PFOA and PFOS, but should also expect to face growing scrutiny and pressure to eliminate the use of such chemicals.