Mar 312021

California Agency Proposes Listing PFOA as a Carcinogen under Proposition 65

Samuel B. Boxerman and Marshall R. Morales
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Earlier this month, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed listing perfluorooctanoic acid (PFOA) as a carcinogen under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65. Under Proposition 65, OEHHA maintains a list of carcinogens and reproductive toxins, and businesses must generally provide “clear and reasonable” warnings prior to exposing anyone in California to a listed chemical, including through consumer, worker, or environmental exposures.

The proposal from OEHHA follows the U.S. Department of Health and Human Services National Toxicology Program (NTP) issuing of a technical report in which PFOA was purportedly linked to increased tumors in rats. OEHHA has made the proposal on the basis that the NTP technical report constitutes an “authoritative body” finding that the chemical causes cancer. OEHHA already listed PFOA as a reproductive toxin in 2017.

PFOA is an emerging contaminant of concern, falling within the broader category of per- and polyfluoroalkyl substances (PFAS), sometimes called “forever chemicals.” PFAS as a chemical category contains thousands of synthetic compounds that have been developed since the 1940s, used in various product applications for heat resistance, nonstick coatings, or lubrication, among others. PFOA was phased out of domestic emissions and products by 2015 through a voluntary agreement between the Environmental Protection Agency and manufacturers. Nonetheless, PFOA potentially remains present in the environment and in imported products.

The proposal opens a public comment period through May 3.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Marshall R. Morales

Washington, D.C.

mmorales@sidley.com

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