DO I HAVE A PROP 65 CLAIM IF I PURCHASED A PRODUCT CONTAINING PFAS?

*** This information is provided subject to Litteral LLP’s Terms & Notices and is presented solely for informational purposes.  Because this information is general in nature, it should not be relied upon or treated as legal advice or a substitute for legal advice.  This information is presented in accordance with Litteral LLP’s aim of enhancing access to the law.  Litteral LLP expresses no opinion as to the merits of a particular case or a particular set of facts.***

Consumers are increasingly concerned about the existence of per-and-polyfluoroalkyl substances (“PFAS”) in their products.  And for good reason.  Researchers have linked PFAS to a long list of health effects, including fertility, high blood pressure, increased risk of certain cancers, developmental delays, hormonal disruption, and high cholesterol, amongst others.  California has enacted measures to address PFAS in consumer products, including under California’s Proposition 65 (“Prop 65”).  

Prop 65, codified at California’s Health and Safety Code, §§ 25249.5-25250.25, requires businesses to notify consumers if their products contain chemicals “known to the state to cause cancer.”  California’s Office of Environmental Health Hazard Assessment (“OEHHA”) maintains a list of those chemicals.  The most recent list—released in December 2023—includes three types of PFAS, including Perfluorononanoic acid (“PFNA”) and its salts, Perfluorooctane sulfonate (“PFOS”), and Perfluorooctanoic acid (“PFOA”).

If a consumer detects one of those three PFAS in a product, they may have a claim under Prop 65.  Before bringing a private enforcement action, consumers must give 60 days’ notice of an alleged violation to the Attorney General (“AG”), other local prosecutors, and the alleged violator.  After receiving the notice, the AG is required to issue a no-merit letter if they believe the action is meritless, but the failure to do so is not an endorsement that the action has merit.  A no-merit letter does not prevent a person from bringing a private enforcement action.  If the AG or other prosecutor does not begin a prosecution within the 60 days’ notice period, the consumer may file their private enforcement action.

A consumer that satisfies the notice requirement may seek injunctive relief and penalties of up to $2,500 per day per violation.  A prevailing consumer plaintiff may receive 25% of any penalty collected and may request reasonable attorneys’ fees.  The State of California receives 75% of the penalty collected. 

Notably, Prop 65 is one of various important California laws that may be relevant as to PFAS in consumer products.  For products that contain PFAS not covered by Prop 65, California’s consumer protection statutes may still provide recourse.  For example, California has enacted legislated to cover certain disposable food packaging or cookware and children’s products.  Finally, starting January 1, 2025, further measures will take effect in relation to PFAS in cosmetics and apparel.  Until then, consumers may still have recourse for those consumer goods through California’s other consumer protection statutes.  Any consumer considering legal recourse should consult a qualified attorney who can evaluate the applicable laws, relevant legal developments, and specific facts of a given case.

*** This information is provided subject to the disclaimer above and Litteral LLP’s Terms & Notices.***