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April 2023

California’s Prop 65 Magnifies PFAS Oversight of Food Producers

Originally published by Bloomberg Law on April 26,2023.

Gordon & Rees’s Brian Ledger analyzes legal claims related to PFAS, a growing concern in the food industry and focus of class actions. New litigation will soon include Proposition 65, another popular avenue for the plaintiffs’ bar, he says.

California’s Proposition 65 applies to companies that manufacture, distribute, or sell products that will ultimately be sold in California or online to California customers. It presents legal challenges particular to the food industry related to PFAS. Per- and polyfluoroalkyl substances are a class of thousands of chemicals that are found in many different consumer, commercial, and industrial products.

Proposition 65 intends to protect California drinking water and inform state residents about exposure to chemicals from the environment, workplace, and consumer products. The law is enforced by public prosecutors and private party enforcers (bounty hunters) who seek injunctive relief, penalties, and attorneys’ fees against companies that are out of compliance.

Violations of Proposition 65 can lead to penalties of up to $2,500 per violation per day, with the possibility of plaintiff attorneys’ fees. A new wave of Proposition 65 claims focused on PFAS is now starting. Companies in the food industry should act now to best protect against this litigation.

Products and Packaging

PFAS has been identified in popular media as a constituent in food packaging containers. Regulatory limits for how much PFAS food packaging should contain can vary greatly.

Given the relative recency of PFAS as a toxicological concern, and the broad scope of chemicals within the PFAS class, PFAS testing in food products is still relatively limited. Published data from the Food and Drug Administration confirmed PFAS in such foods as meats, certain fish and shellfish, milk, grains, and some leafy green vegetables. For most of these products, the FDA did not deem them a human health concern. Very recently, class-action lawsuits have been filed alleging the presence of PFAS in such foods as butter and fruit juices, among others.

Litigation and Regulation

The legal landscape for litigation and regulation related to PFAS has shifted in the last few years. This has been fueled by toxicological and environmental studies that have generated information the plaintiffs’ bar argues supports such lawsuits and regulations, although these issues are strongly disputed in the science arena.

To protect against Proposition 65 liability, companies can employ the defense that any exposures to PFAS from subject products would be below the threshold for potentially causing harm to people. However, proving this defense can be extremely expensive. Alternatively, companies can protect themselves from liability by simply ensuring that the products contain a Proposition 65-compliant warning. When properly warning, a company can avoid Proposition 65 liability, despite however much PFAS is in the product.

PFAS Compliance Tips

The recommended protocol for complying with Proposition 65 will vary depending upon where a company falls in the overall supply chain. In general, the most onerous duties are intended to lie with the highest entity in the chain, the manufacturer. Nevertheless, retailers also have responsibilities that must be addressed. To minimize the potential for Proposition 65 liability, companies should consider the following steps.

Establish a Compliance Policy. A written compliance plan is essential to maximizing protection against Proposition 65 liability. The plan should identify those steps the company will take to comply. In the event of enforcement, this effort can also minimize penalties by showing the diligence and good-faith effort to comply.

Identification of Suspect Products. The food products described above are a good starting point for assessment of products potentially containing PFAS.

Communication with Supply Chain Partners. Communication is vital for all entities in the supply chain. Companies should require suppliers to provide certifications that PFAS are not present in products. Additionally, requiring suppliers to provide a warranty that all food products supplied comply with all legal requirements is helpful.

Indemnity/Hold Harmless Agreements. When possible, a company should obtain indemnity/hold harmless agreements from suppliers requiring the suppliers to defend and indemnify the company in the event of litigation.

Product Testing. Depending upon the circumstances, product testing for PFAS can be considered. Attorney involvement should also be considered if testing, as attorney-client privileges may be important. Also, companies obtaining product from upstream suppliers should request any testing results conducted by the suppliers.

Proper Warnings. Proposition 65 provides a safe harbor for those products containing a compliant warning.

Manufacturer Warning Issue. If food manufacturers/growers are supplying products to its distributors or retailers without the Proposition 65 warning on the product or its packaging, the manufacturers/growers must provide these customers with the proper Proposition 65 materials (shelf signs, tags) to enable the customers to make the product compliant with Proposition 65 warning requirements.

Conduct Proper Scientific Assessment to Support Defenses in Litigation. Companies should retain experienced counsel to develop the complicated scientific assessment necessary to show, when possible, that any exposures to PFAS from the subject product are below the thresholds for harm.

Environmental/Toxic Tort

Brian M. Ledger

Environmental/Toxic Tort