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INSIGHT: PFAS Liability Is Coming to California about:reader?url=https://www.bna.com/insight-pfas-liability-n57982093402/

those actions.

These regulatory and legal elements suggest a hostile economic

climate for any company that has manufactured or potentially used

PFAS in its business. Depending on where that company is located,

it might be facing strict groundwater regulations, onerous labeling

and packaging requirements, or an active plaintiffs’ bar looking to

bring suit against PFAS-related businesses. Throughout the

country, companies are starting to face serious PFAS risks. But in

California, they are staring down the proverbial “perfect storm” of

liability under Proposition 65—a multifaceted statute intended to

address chemical contamination.

On Nov. 10, 2017, the California Office of Environmental Health

Hazard Assessment (OEHHA) added PFOA and PFOS to “the list

of chemicals known to the state to cause reproductive toxicity

(developmental endpoint) for purposes of Proposition 65.” This

means that, starting November 2018, companies doing business in

California with 10 or more employees will be required to provide a

“clear and reasonable” warning before knowingly and intentionally

exposing anyone to PFOA or PFOS. Complicating matters, the

OEHHA implemented a comprehensive overhaul of the “clear and

reasonable” benchmark late last month. And Proposition 65 is not

limited to warning requirements; it protects drinking water too.

Starting July 2019, California businesses will be prohibited from

discharging PFOA or PFOS into drinking water sources as well.

Under Proposition 65, the potential liability for the use of ubiquitous

chemicals such as PFAS ranges from “serious” to “extreme.” Civil

penalties can reach up to $2,500 per violation per day, and

Proposition 65 provides liberal private enforcement mechanisms.

Proposition 65 can also incentivize lawsuits through attorneys’ fees

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