PFAS Regulations Could Open Floodgates to Prop 65 Enforcement – Assess & Manage Your Exposure Now


The group of chemicals known as PFAS (per- and poly-fluoroalkyl substances) are high on the federal regulatory agenda for 2022, as implementation of EPA’s “PFAS Strategic Roadmap” proceeds. One potential consequence will be new additions to California’s “Prop 65 List” of chemicals known to cause cancer or reproductive harm. Already, two PFAS substances are subject to Prop 65 warning and labeling requirements (PFOA and PFOS), with a third (PFNA) subject to enforcement starting in 2023. New federal Health Advisory Levels (HALs) announced on June 15, 2022 may provide the basis to add another two PFAS to the list (PFBS and GenX).

Prop 65 requires certain warnings at the time of sale and labeling of products containing chemicals that have been identified as posing a potential risk of reproductive harm or cancer, and provides for private enforcement actions. Manufacturers, importers, suppliers, distributors, and retailers of products for sale in California are all potentially liable for ensuring adequate consumer warnings. Prop 65 also requires employers and property owners to provide warnings in workplaces and in buildings where exposure to listed chemicals may occur. The penalty for failure to provide such warnings can be as high as $2,500 per violation (e.g., per sale for consumer products; per day for workplace/building exposure).

Because of the ubiquity of PFAS and the very low levels at which they are regulated — typically measured in parts per trillion — these and any future listings have far-reaching implications for businesses.

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National Law Review, 27-06-22