California Expands Review Of PFOS, PFOA To Include Cancer Risk

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The California Office of Environmental Health Hazard Assessment (OEHHA) is expanding its review of potential substances to add to its Proposition 65 list of chemicals that cause cancer.

Earlier this year, the state announced it intended to add perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) to the list. After the public comment periods ended for those two substances, OEHHA announced it also intended to add four other chemicals: PFDA, PFHxS, PFNA, and PFUnDA.

The chemicals will be reviewed by two different committees of OEHHA’s Science Advisory Board.

What does this mean?

The chemicals in question are considered perfluoroalkyl and polyfluoroalkyl substances (PFAS) and are already on California’s list of chemicals believed to cause reproductive harm. The proposed addition of the chemicals to the cancer list could have significant implications for businesses doing business in California, though.

For years, we have seen law firms and environmental groups actively pursue Prop 65 notice violations under the “private Attorney General” provisions of the enabling statute that allows private individuals to seek enforcement.

To avoid the costs and publicity of such an action, companies should proactively consult with counsel to determine what steps they may want to take.

What are these chemicals?

Previously referred to as perfluorochemicals (PFCs), they are man-made chemicals that may affect growth and development, reproduction, thyroid function and the immune system, according to studies on laboratory animals cited by the Centers for Disease Control and Prevention.

The chemicals were used to coat products that need to resist heat, oil, stains, grease, and water. They were commonly found on clothing, furniture, adhesives, food packaging, heat-resistant non-stick cooking surfaces, and the insulation of electrical wire.

Though these chemicals are no longer manufactured in the United States, they are still sold internationally and may be in products that are sold in California.

What is Prop 65?

Also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, Prop 65 requires businesses to warn Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm. The state regularly updates the list.

What is next?

It will likely take up to a year for state officials to review all of the new chemicals. If the substances are listed, Prop 65 notices will be required on the products containing the chemicals in addition to prior reproductive toxicity warnings.  Companies should consider their supply chain now and determine whether any disclosures are necessary. If so, recent changes in the form of Prop 65 disclosures need to be considered. Additionally, companies may wish to provide input into the consideration of the chemicals.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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