California just added per- and poly-fluoroalkyl substances (PFAS) to the list of chemicals requiring consumer warnings under Proposition 65, which means state residents can soon expect seeing the words “cancer” and “reproductive harm” on these common consumer products. like shampoo, nail polish, kitchen utensils and fast food.
PFAS are a group of synthetic chemicals that have been widely used for decades in consumer products such as fast food wrappers, clothing and carpets, and industrial products such as fire fighting foam. Although there are no epidemiological studies showing a statistically significant link between PFAS exposure and disease, in 2006 the Environmental Protection Agency (EPA) Scientific Advisory Board stated that the chemical is “suspected of being carcinogenic to humans”. State regulations on PFAS in water and consumer products soon followed, with California at the forefront. In addition to bill to ban the use of PFAS in cosmeticsCalifornia now requires any company selling products containing PFAS to provide a warning with the product, or face penalties of $2,500 per “violation.”
The impact of this latest regulation cannot be underestimated – PFAS are found in a wide variety of consumer products and California is the world’s fifth largest economy. California obviously holds considerable influence in setting standards for manufacturers, sellers and producers of goods around the world. As such, the practical impact of adding PFAS to the list of chemicals regulated by California law is that a significant percentage of any company engaged in domestic or interstate commerce will now be required to place warnings on common everyday products. Even virtual marketplace 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 having a system in place to track regulatory changes, it is also prudent for companies to adopt contractual provisions to reduce their liability in the event of 65 enforcement action. As more and more PFAS will be added to the list in the coming years, it is crucial that companies take the necessary steps now to minimize their risks and liabilities.