California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65” or “Prop 65”) was passed with the intention of providing consumers with information regarding potential exposure to chemicals identified as carcinogens and/or reproductive toxicants. Proposition 65 requires “clear and reasonable” warnings to be placed on products where exposure to a chemical on the Proposition 65 list would exceed a safe harbor level as a result of normal, foreseeable use of the product.  Prop 65 PFAS issues are more recent in California’s regulatory history, although prove just as risky to companies as other chemicals on the Prop 65 list.

In almost every instance, companies face risk from Prop 65 issues due to allegations that the companies failed to provide adequate warning labels on products for chemicals listed on the Prop 65 list. However, Prop 65 also includes a “discharge provision” that allows for a private right of action against companies that discharge a chemical listed on the Prop 65 list into a waterway or land body where the chemical is likely to enter a drinking water source. To date, this provision has almost never been used to pursue PFAS related claims under Prop 65. A report from Curt Barry of IWP News yesterday, though, broke the news that the Center for Environmental Health (CEH) is expected to settle Prop 65 PFAS claims brought under the discharge provision against two companies in the near future.

In 2023, the CEH filed notices and a subsequent lawsuit against Teikuro Corp. and Electro-Coatings of California, arguing that the chrome-plating companies discharged PFAS into drinking water sources in violation of Prop 65. It was alleged that the companies had discharged PFAS into the waterways since 2020. The terms of the potential settlements were not disclosed by CEH; however, in CEH’s initial Complaint, it asked the Court to award civil penalties, take steps to prevent the future discharge of PFAS into waterways, and pay for the cleanup of groundwater and soil around the companies’ operations.

The news of the first of its kind PFAS settlement should catch the eye of any company with a manufacturing or industrial presence in California. While the settlement amounts may be what ultimately drives the motivation for others to follow in CEH’s footsteps and file similar lawsuits, there is nevertheless risk to companies in California if their discharges may contaminate drinking water sources. The business disruption and settlements from these types of actions prove more costly to companies than proactive steps to identify PFAS risk issues from business practices, so companies should endeavor to assess (whether using internal professionals, outside professionals, or both) to understand precisely what the PFAS risk landscape looks like from current business operations.

CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team: John Gardella.