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Prop 65 Regulations Target PFAS

PFAS substances (“perfluoroalkyl” or “polyfluoroalkyl”) are a group of hundreds of thousands of synthetic organic compounds found in a variety of sources. These substances have a large number of applications. They have been used for fighting fires, manufacturing carpets, treating wastewater, and packaging fast food. In the past, state regulators have been at the forefront of addressing the health hazards associated with these substances. Now, the federal government is indicating that it plans to take action relating to PFAS exposure as well.

PFAS substances are considered chemicals of concern not only because of their pervasive presence, but also because of their ability to persist in a variety of environments, including human biological tissues. These characteristics make the regulation of PFAS incredibly challenging on many levels. Although human data show that levels of these chemical in humans are declining, state regulators recognized the need for action and have implemented various measures to target these substances. For example, the New Jersey Department of Environmental Protection issued a recommendation for maximum levels of exposure at 14 parts per trillion for perfluorooctanoic acid (PFOA) and 13 parts per trillion for perfluorooctane sulfonate (PFOS). The state also adopted a maximum level for another form of PFAS in an ongoing effort to shield its water supply from these contaminants. In Washington, PFAS was banned from use in food packaging and manufacturing firefighting foam.

The EPA previously has regulated various PFAS substances under the Toxic Substances Control Act, through its Significant New Use authority. Further, under voluntary programs administered by EPA and adhered to by major companies, the manufacture of PFAS and use of these substances in consumer products have dramatically declined. But the federal government is now implementing further actions targeting PFAS. In May 2016, the EPA established Health Advisory levels for PFAS and PFOA at 70 parts per trillion combined in drinking water. However, these Health Advisory levels require further action by the EPA to be enforceable. The EPA has responded that it would implement measures to identify PFOA and PFOS as “hazardous substances” under federal law. It also plans to assess the need for a maximum contaminant level for PFOS and PFOA in drinking water.

In addition to potential federal liability, companies may face the prospect of liability under Proposition 65 for alleged PFAS exposure. In November 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) added PFOA and PFOS to the list of chemicals known to cause reproductive toxicity. In addition, PFOA and PFOS will be subject to the Proposition 65 discharge prohibition.  However, OEHHA has not set maximum allowable dose levels (MADLs) for PFOA or PFOS. OEHHA has only stated that it will establish recommended drinking water standards at some point later this year.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Prop 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.