California's Office of Environmental Health Hazard Assessment (Oehha) has listed perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as developmental toxicants under Proposition 65. It base its action on the US EPA's findings even though the agency has not officially regulated the substances.
In their comments on the notice to list the substances, industry groups protested against this use of the law's "authoritative body listing mechanism". This requires a chemical be listed under Proposition 65 if it has been found to be a carcinogen or reproductive toxicant by a designated authority.
Oehha cited conclusions by the EPA that "in several documents that PFOA and PFOS cause adverse developmental effects," the EPA's identification of acceptable exposure levels for drinking water and "the scientific evidence relied upon" by the EPA in its decision making.
However, the American Chemistry Council (ACC) argued that because the EPA has issued only non-regulatory guidance on the chemicals it "has not formally identified either PFOA or PFOS as causing reproductive toxicity".
PFOA and PFOS are surfactants that have been used in a variety of consumer products. These include:
- non-stick cookware; and
- food packaging.
The EPA took the approach of working with industry to phase out their use by the end of 2015 under a stewardship programme. ItA proposed a significant new use rule (Snur) to codify the voluntary phase out and apply it to manufacturers who were not party to that agreement, but the Snur has not been finalised.
In October 2016, industry groups argued against the prioritisation of PFOA and PFOS for preparation of hazard identification materials in California, and similarly argued in December against listing the chemicals under Proposition 65.
Oehha said in its response to the comments that while "many organisations which may be considered authoritative do not treat the identification of chemical hazards as a regulatory endpoint," documents used in the regulatory process "will likely identify a chemical as a cancer or reproductive hazard with finality long before the standard is finally adopted".
The Proposition 65 regulations establish an intention that identification of a hazard "will be sufficient indication of a 'final action' on the issue of hazard identification to conclude that the chemical has been 'formally identified'," the agency said.