SACRAMENTO – With California's addition of two per- and polyfluoroalkyl substances (PFAS) – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – to its Proposition 65 list, the state may have potentially paved the way for an explosion of lawsuits.
“It confirms our … concern all along,” said Luke Wake, an attorney with the National Federation of Independent Business (NFIB) Small Business Legal Center in Sacramento. “We’ve continually raised concerns about Prop 65 as really creating open season for these plaintiffs' … controlling attorneys, basically.”
Proposition 65 is also known as the Safe Drinking Water and Toxic Enforcement Act and was passed in 1986. PFOA and PFOS were added to the Proposition 65 list in 2017 and warnings were required on products as of November 2018, according to a report in JD Supra.
Wake
PFAS are artificial compounds utilized in an array of stain-resistant, nonstick and waterproof products that include carpets, cookware, furniture and clothing.They are also found in fire fighting foam, and used heavily by the U.S. military.
Lawsuits outside California involving PFAS have been filed in regions with heavy PFAS manufacturing. California does not possess a significant PFAS-manufacturing industry relative to other states, but if traces of PFAS are found in California’s drinking water, lawsuits could be on the horizon. The state's water board began sampling drinking and ground water earlier this summer, the Northern California Record previously reported.
A federal multidistrict litigation proceeding has already commenced in South Carolina, where more than 100 lawsuits have been consolidated. Some have called PFAS “the next asbestos” because of the potential for decades of litigation.
PFAS cannot be broken down chemically and are highly active in soil and groundwater. Allegedly, they can generate harmful health effects, which compelled the state to place them on the Proposition 65 list as chemicals known to cause reproductive toxicity.
Since November 2018, all California businesses have been required to clearly and suitably inform or warn people prior to knowingly exposing them to PFOA or PFOS.
Wake believes a reasonable transitional window of compliance should have been extended to businesses.
“Good public policy would be giving people an opportunity to come into compliance once it’s brought to their attention that a warning is required,” he said.
PFAS are presently not considered hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) or the California Hazardous Substances Account Act (HSAA).
Further, as reported by Legal Newsline, politicians and regulators who seek to set limits on PFAS are not basing decisions on scientific consensus but rather their decisions are the result of a political process, according to a scientist/law professor.