California Adds PFOA to List of Carcinogens, Triggering More Prop 65 Requirements for PFAS Compounds

Adding regulatory requirements for PFAS compounds, the California Office of Environmental Health Hazard Assessment (OEHHA) added PFOA to the list of chemicals known to cause cancer.  OEHHA’s determination was based on the National Toxicology Program (NTP) formal identification of PFOA as a chemical that causes cancer.   The listing will create new label requirements under Prop 65 for any product sold in California that contains PFOA, and may also increase enforcement actions targeting those products.

This recent listing for PFOA is the latest in a series of actions in California regarding PFAS compounds.

• November 10, 2017 – PFOS and PFOA listed as substances that cause reproductive harm
• March 11, 2021 – Notice of intent to list PFOA as a carcinogen
• March 26, 2021 -- Notice of intent to list PFOS as a carcinogen
• March 26, 2021 – Notice of intent to conduct review of four PFAS for possible reproductive toxicity (PFDA, PFHxS, PFNA, and PFUnDa)
• December 22, 2021 – PFOS listed as a carcinogen (effective December 24, 2022)
• December 31, 2021 – PFNA listed as chemical capable of causing male reproductive harm
• February 25, 2022 – PFOA listed as a carcinogen (effective immediately)

California’s Prop 65 was passed with the intention of providing consumers with information regarding potentially cancer-causing agents in products that would allow consumers to make an informed decision as to whether to purchase the product. Prop 65 requires “clear and reasonable” warnings to be placed on products that can expose a consumer to a chemical that the State of California determines may be cancer-causing or cause reproductive harm.  Prop 65 penalties can be as high as $2,500 per violation per day.  Companies often face the added prospect of third-party lawsuits and paying the other side’s attorney fees, as a result, most Prop 65 matters carry substantial financial risk and are very expensive to litigate.

Companies that were already 1) testing products, 2) conducting due diligence to determine whether any of its products contain any of the PFAS determined to be cancer-causing or cause reproductive harm, and 3) ensuring proper warning labels on applicable PFAS-containing products to comply with Prop 65’s strict regulatory requirements must now factor in the new PFOA carcinogenic determination. This may require modifications to any necessary warning labels, unless a business is already availing itself of a safe harbor warning that covers both cancer and reproductive harm, or if any exposure would be below safe harbor levels.

As more PFAS compounds are identified as carcinogens or reproductive toxins, companies doing business in California must act now to determine if any products sold in the State of California contain any of the regulated PFAS compounds. Supply chain analysis is a critical part of the process. For companies with products that contain the PFAS that are the subject of the notices, precise warnings will need to be adhered in the proper way and location (whether on the product packaging, on a website prior to the consumer purchasing the product, etc.) that may not be as simple as it sounds.

NASF will continue to monitor Prop 65 PFAS developments and provide updates to NASF members.  If you have any questions or would like additional information, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.

This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.