Perhaps lost amid the political activity of election week, an important set of regulations became enforceable in California on Nov. 10, 2018, under Proposition 65. From that Saturday forward, companies doing business in California with 10 or more employees are required to provide a “clear and reasonable” warning before exposing anyone to products with perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). Liability under Proposition 65 can multiply rapidly and viably threaten statewide business operations in California. Despite that risk, the state regulator—the California Office of Environmental Health Hazard Assessment (OEHHA)—has yet to offer any guidance on how businesses can avoid liability.
PFOA and PFOS are two of the most common forms of the emerging contaminant known as perfluoroalkyl and polyfluoroalkyl substances (PFAS). Recently, PFAS have caught the attention of regulators and litigants throughout the country. This ubiquitous collection of chemicals has been utilized in myriad industries for decades, ranging from paper manufacture to wastewater treatment to firefighting at industrial facilities. Some measure of PFAS can be found in every person in the U.S. These compounds are incredibly persistent and provide a remarkably difficult remediation challenge.
