The opinion piece published in The Recorder on November 20 (“The New Reality of PFAS Liability in California“), written by Jeffrey Dinzer and Nathaniel Johnson, contained a number of inaccuracies and left out some important information that the California Office of Environmental Health Hazard Assessment (OEHHA ) believes the business community should be aware of when considering this “new reality.”

To be clear, PFOA and PFOS are the only PFAS chemicals currently on California's Proposition 65 list. The listings occurred in November 2017 following an open and public process. There is statutory one-year grace period following a listing to allow businesses to determine whether they need to provide a warning for exposures they cause to a listed chemical. The warning requirement for exposures to PFOA and PFOS took effect in November 2018.

Although the two authors contend that OEHHA “has yet to offer any guidance on how businesses can avoid liability,” OEHHA is committed to assisting businesses seeking to understand their potential Proposition 65 obligations. OEHHA's regulations can serve as a guide to businesses in determining whether a warning is required and explain how to provide a warning that is deemed “clear and reasonable,” as the law requires. Further, the authors did not point out that the statute only applies to knowing and intentional exposures—a crucial point for businesses to be aware of.

Consistent with that point, they also raised a fictional “legacy warning” issue concerning whether carpeting installed at a business decades ago may now require a warning for exposures to PFOA or PFOS. It seems unlikely that a typical business would know whether such carpeting causes exposures to either chemical, and as previously stated, Proposition 65 only requires warnings for knowing and intentional exposures. For good reason, both the statute and its implementing regulations say product manufacturers are primarily responsible for determining whether a product requires a warning.

Not all exposures to PFOA or PFOS require a warning. Although it is not required to do so, OEHHA develops draft safe harbor levels for many listed chemicals that identify levels of exposure that are too low to require a warning.  OEHHA is currently developing levels for PFOA and PFOS, and expects to release draft levels soon for public comment. Other OEHHA regulations provide guidance for businesses on how to calculate a warning level where OEHHA has not yet adopted one. All OEHHA regulations can be accessed through our website.

OEHHA is separately working on recommended Notification Levels for PFOA and PFOS in drinking water for use by the State Water Resources Control Board. These advisory levels do not affect Proposition 65 liability. In fact, public water suppliers are not subject to Proposition 65.

Finally, the writers make the unfortunate contention that OEHHA has “magnified the confusion” with its statement that businesses are responsible for determining when warnings are necessary. OEHHA was simply reiterating a statutory fact. When the voters approved Proposition 65 in 1986, they made a clear statement that they wanted businesses—rather than government—to have that responsibility.

Carol J. Monahan-Cummings

Carol J. Monahan-Cummings is Chief Counsel of the Office of Environmental Health Hazard Assessment at the California Environmental Protection Agency.