California has just added per- and poly-fluoralkyl substances (PFAS) to the list of chemicals requiring consumer warnings under Proposition 65, meaning that state residents can soon expect to see the words “cancer” and “reproductive harm” on such common consumer products as shampoo, nail polish, cookware and fast food.
PFAS are a group of man-made chemicals that have been widely used for decades in consumer products such as fast food wrappers, clothing and carpets, as well as industrial products such as firefighting foam. Although there are no epidemiological studies showing a statistically significant link between exposure to PFAS and disease, in 2006 the Environmental Protection Agency (EPA) Science Advisory Board stated that the chemical is “likely to be carcinogenic to humans.” State regulations of PFAS in water and consumer products swiftly followed, with California in the forefront. In addition to proposed legislation to ban the use of PFAS in cosmetics, California is now requiring any business that sells PFAS-containing products to provide a warning with the product, or face penalties of $2,500 per “violation.”
The impact of this latest regulation cannot be understated—PFAS are found in a wide variety of consumer products, and California is the world’s fifth largest economy. California obviously holds substantial influence in setting the standards for manufacturers, sellers and producers of goods across the globe. As such, the practical impact of adding PFAS to the list of chemicals regulated under California law is that a significant percentage of any business engaged in national or interstate commerce will now be required to place warnings on common, every-day products. Even virtual market place forums such as Amazon may be subject to Prop 65 enforcement actions. In order to manage Prop 65 risks and liabilities, businesses are advised to periodically review regulatory changes to ensure they remain compliant with Prop 65 requirements. In addition to implementing a system to track regulatory changes, it is also prudent that businesses adopt contractual provisions aimed at reducing their liability for a potential Prop 65 enforcement action. As more PFAS are added to the list in the coming years, it is crucial that businesses take the necessary steps now to minimize their risks and liabilities.