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INSIGHT: PFAS Liability Is Coming to California about:reader?url=https://www.bna.com/insight-pfas-liability-n57982093402/
awards. As demonstrated by the state’s ongoing experience with
coffee retailers, Proposition 65 violations can threaten operations
statewide.
For businesses that manufactured, retailed, or used products
containing PFAS on a regular basis—such as fast-food packaging
—adding up $2,500 per violation per day could in a little over a year
amount to a million dollars of potential legal liability. Moreover, once
in litigation, plaintiffs are only required to find trace amounts of the
listed chemical, while defendant businesses are obligated to prove
the negative that the chemical presents no significant health risk.
Undoubtedly, the sizable and aggressive Proposition 65 plaintiffs’
bar in California has already started analyzing the chemistry of
common consumer products to determine whether PFAS are
present.
Despite the substantial risk to California businesses posed by its
listing decision, the OEHHA has not even established maximum
allowable dose levels for PFOA or PFOS. When it added PFOA
and PFOS to its Proposition 65 list, the OEHHA invoked the
“authoritative bodies” mechanism by relying on EPA science. But
unlike the EPA, which set unenforceable Health Advisory limits at
70 parts per trillion combined for PFOA and PFOS to drinking
water, the OEHHA has stated that its own “listing is not specific to
any route of exposure” or even to established maximum allowable
dose levels. The only direction the OEHHA has given is that it
expects to complete its recommended drinking water standards
“later this year.” Adding to the confusion, the OEHHA has given no
indication whether it will impose legacy warning requirements for
products that contained PFOA and PFOS before they were listed—
such as carpeting installed decades ago. Instead of offering any
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