Court Blocks Prop 65 Acrylamide Warning for Food Products

On May 2, 2025, the District Court for the Eastern District of California ruled that California’s Proposition 65 (Prop 65) warning requirement for dietary acrylamide constitutes unconstitutional compelled speech, granting a permanent injunction barring its enforcement in California Chamber of Commerce v. Bonta, No. 2:19-cv-02019.

The court acknowledged that the entirety of the warning requirement—which included a notice of possible exposure to acrylamide and a reference to findings by one of several organizations regarding its cancer risks—was literally true. However, the court held that the warning was nonetheless “misleading and controversial,” and therefore unconstitutional, because it ignored a “vigorous scientific debate” over whether acrylamide’s cancer findings in rodents can be extrapolated to humans.

“[M]isleading statements about acrylamide’s carcinogenicity do not directly advance” California’s interest in “preserving the health of its citizens,” the ruling states.  “Accordingly, Prop 65’s warning requirement as to acrylamide in food fails intermediate scrutiny under the First Amendment.”

The court also rejected California’s arguments that the warning was not compelled because businesses are exempted if they can demonstrate that the chemical does not pose a significant risk at the product’s exposure levels.  Because businesses relying on the exemption “run the risk of incurring substantial costs in defending against enforcement actions,” the court held that the exemption does not offer a true “reprieve from Prop 65’s warning requirement.”

The court had previously enjoined a Prop 65 warning for dietary acrylamide in 2021. The California Office of Environmental Health Hazard Assessment (OEHHA) subsequently revised the warning language and weakened it further following a 2023 Ninth Circuit decision striking down a similar Prop 65 warning for glyphosate.

That Ninth Circuit decision provided the basis for much the court’s ruling, including its position that a literally true disclosure can still be misleading in context.  A blog post on that case can be found here.

Apple Moves to Dismiss Watch Band PFAS Suit

A proposed class action alleging that Apple Watch bands contain PFAS should be dismissed for lack of standing, Apple told the District Court for the Northern District of California on April 14, 2025.

The plaintiffs in Cavalier v. Apple, Inc., No. 5:25-cv-713, claim that a published study detected PFHxA (a type of PFAS) and “significantly elevated levels of fluorine” in Apple Watch bands, despite Apple’s “health and environmental promises to the contrary.”  The complaint alleges violations of California’s unfair competition law and false advertising law, as well as various fraud claims.

In its motion to dismiss, Apple argues that the plaintiffs failed to link the study results—which were anonymized—to specific Apple products.  “The [study] does not show that Apple Watch bands contain PFAS generally, nor that the particular Watch bands purchased by Plaintiffs contain PFAS,” the motion states, alleging that the complaint fails to plead an injury in fact.

Apple also objects to the plaintiffs’ characterization of PFHxA as “a dangerous form of PFAS that pose significant harms to people and the environment.”  Apple argues that the plaintiffs “provide no evidence” that PFHxA in particular has adverse health effects, and contends that they attempt to “blur the distinctions among PFAS chemicals and create a toxic scare where none exists.”

In addition, Apple argues that its advertising claims—which include statements like “[t]he ultimate device for a healthy life”—are vague and nonspecific and cannot serve as the basis for the plaintiffs’ fraud claims.

The suit is one of several recent cases targeting consumer products alleged to contain PFAS, as plaintiffs increase scrutiny of so-called “forever chemicals” in everyday items.  A hearing on the motion to dismiss is scheduled for July 31, 2025.

Health and Safety Reporting Rule Finalized for 16 Chemicals

On December 13, 2024, EPA finalized a rule under the Toxic Substances Control Act (TSCA) requiring manufacturers of 16 chemical substances to submit unpublished health and safety studies to EPA.  The agency will use this information to inform possible evaluation and regulation of these substances under TSCA section 6.

Once the rule takes effect on January 13, 2025, covered entities will have 60 days to report unpublished health and safety information, which includes environmental monitoring data, studies on environmental effects, and tests on biological, photochemical, and chemical degradation.  Manufacturers must also submit lists of planned, ongoing, and known studies, even if the studies are not in their possession.

The rule requires manufacturers to submit these studies regardless of the level at which the substances are present in the evaluated media (e.g., air, soil, water, sediment, or biota).  That is, EPA opted not to include a minimum concentration level for these substances.  Historically, EPA has exempted studies in which a listed substance was only present as an impurity.  That is not the case here.

A complete list of the 16 chemicals can be found in a previous blog post.  On December 18, 2024, EPA initiated risk evaluations for five of these substances and began the prioritization process—an initial step before risk evaluation—for another five.  More on those actions can be found here.

Update

On March 6, 2025, EPA announced in an email that the agency will issue a rule to extend the reporting deadline by 90 days to June 11, 2025, for vinyl chloride and 180 days to September 9, 2025, for the other chemicals covered under the rule.

Gore-Tex Maker Faces PFAS Greenwashing Allegations

A proposed federal class action has been filed against W.L. Gore & Associates, accusing the company of systematically misleading customers about the sustainability of its widely used Gore-Tex Fabric.

The February 11 complaint alleges that Gore-Tex is produced using PFAS, chemicals that pose “extremely dangerous health and environmental effects” and allegedly shed from Gore-Tex during ordinary use.  Despite this, the plaintiffs argue that Gore markets the fabric as “non-toxic and safe for the user” and “environmentally sound,” creating a false impression about its safety and sustainability.

“Instead of coming clean on its use of PFAS and their environmental consequences, Gore…embark[ed] on a significant greenwashing campaign full of material misrepresentations and omissions designed to deceive eco-conscious consumers and safeguard Gore’s profits,” the complaint states.

The suit also challenges “[Perfluorinated Chemical (PFC)]* Free Laminate” claims on tags affixed to Gore-Tex products.  According to the complaint, the claim “misconstrues the common definition of the term ‘PFC’ by unilaterally excluding well-known PFC-based chemicals, such as PTFE and ePTFE,” which are PFAS allegedly used to make several Gore products—despite efforts by the company to phase out their use.

The plaintiffs allege that Gore’s practices violate laws in 28 states and DC, including consumer protection, fraudulent concealment, and unfair competition laws.  They seek damages, disgorgement, and an order enjoining Gore from continuing its allegedly unlawful business practices.

The suit comes shortly after Maryland’s Attorney General sued Gore in December 2024, alleging that Gore knowingly “polluted the air and water around its facilities with” PFAS.  Additionally, in 2022, a former employee sued Gore over health effects allegedly stemming from PFAS exposure.

Gore-Tex is used in a variety of companies’ outdoor apparel, including outerwear and athletic shoes.  According to the complaint, Gore-Tex has a 70% market share in the waterproof-breathable textile market.

The case is Mason v. W.L Gore & Associates, No. 2:25-cv-49 (E.D. Wash.).

EPA and OSHA Reach TSCA Section 6 Information Sharing Agreement

On January 13, 2025, EPA and OSHA released a new memorandum of understanding (MOU) governing the agencies’ coordination on “existing chemical substances that are subject to prioritization, risk evaluation, and risk management by EPA under section 6 of the Toxic Substances Control Act (TSCA).”

The MOU provides for regularly scheduled updates between the agencies on workplace chemical matters, establishes protocols for the transfer of confidential business information (CBI), and includes an intent to coordinate on outreach and communications materials.  The agencies also agreed to share information on “complaints, inspections, potential violations and EPA’s planned enforcement,” as well as information on each agency’s enforcement focus areas.

EPA and OSHA anticipate that the agreement “will result in improved workplace health and safety protections for workers using existing chemical substances and allow for effective implementation of our national workplace and environmental protection statutes.”

Regulation of workplace chemical exposures come at the intersection of EPA’s TSCA obligations and OSHA’s authorities under the Occupational Safety and Health (OSH) Act.  However, the MOU notes that “TSCA differs from the OSH Act in several respects including jurisdiction and covers a wider range of workers”—arguments that EPA has invoked to defend stricter TSCA exposure limits than those required by OSHA regulations.

EPA and OSHA previously entered an MOU on coordination under TSCA section 5, which governs EPA’s regulation of new chemicals.  That 2021 agreement is similarly structured, with provisions implementing regularly scheduled updates on EPA activities and CBI protocols.

First Trials Scheduled in Long-Running Paraquat Litigation

The first three trials have been scheduled to begin in October 2025 in a multidistrict litigation with over 5,800 plaintiffs claiming that exposure to the pesticide paraquat dichloride caused them to develop Parkinson’s disease.  A second set of trials is scheduled to begin in April 2026.

The case was filed in June 2021.  A previous set of trial cases were tossed in April 2024 after the court ruled that expert testimony linking the herbicide to Parkinson’s disease relied on “methodological contortions and outright violations of…scientific standards.”

Defendants Syngenta and Chevron maintain that there is no causal link.  They also argue that the litigation is “burdened by cases alleging implausible theories of paraquat exposure,” despite court efforts to clean the docket of cases that “should never have been filed.”

EPA has not found a “clear link” between paraquat exposure from labeled uses and Parkinson’s disease or cancer.  However, on January 17, 2025, EPA asked the Ninth Circuit to allow the agency to withdraw a 2021 interim decision on paraquat to give the agency more time to consider its health risks.

According to EPA, paraquat is one of the most widely used pesticides in the US.  It often referred to as Gramoxone, the name of a popular end-use product manufactured by Syngenta.  Chevron stopped manufacturing and distributing paraquat in 1986.

The case is In Re: Paraquat Products Liability Litigation v. Syngenta Crop Protection, LLC, No. 3:21-md-03004 (S.D. Ill.).

EPA’s PFAS Fluorination Rulemaking Survives Legal Challenge

The D.C. District Court has dismissed a Toxic Substances Control Act (TSCA) citizen suit seeking to speed up the agency’s rulemaking on PFAS formation during plastic fluorination.  The court held that an EPA request for information satisfied TSCA’s requirement that the agency “initiate…action” within 180 days to mitigate “significant risk.”

The environmental groups behind Public Employees for Environmental Responsibility v. Regan, No. 24-2194, argued that TSCA section 4(f) required EPA to issue a rule prohibiting PFOA formation during fluorination within that timeframe.  However, the court ruled that EPA’s September 30, 2024, request for information—which sought details on the number and uses of fluorinated containers, alternatives to fluorination, and risk mitigation measures—was sufficient.

“That request plainly ‘initiate[d] . . . action’…by kickstarting the information-gathering process, and it therefore successfully completed the necessary first step of any rulemaking,” the December 11 opinion states.

The court also rejected the petitioners’ interpretation of TSCA section 7(a)(2), which they argued required EPA to seek injunctive relief  if an “imminently hazardous” chemical exists without a rule addressing it.  That provision only applies if EPA has implemented a rule that is not “immediately effective,” the court held.

Both petitioners were among the organizations who successfully petitioned for EPA to initiate a rulemaking after the Fifth Circuit struck down previous EPA efforts to regulate fluorination in April 2024.  They filed the suit in July, two weeks after EPA granted their petition and before the agency published its information request.

Industry Pushback

Meanwhile, Inhance Technologies—the fluorination company that won the Fifth Circuit case—is arguing that EPA must restart its rulemaking from scratch.  In December comments submitted on EPA’s information request, Inhance stated that EPA “cannot skirt the prioritization process” and “must conduct a new risk evaluation” if it wants to regulate fluorination—steps that take as long as 4.5 years under TSCA.

In addition, Inhance contends that EPA regulations require the agency to consider the subject PFAS under all their conditions of use, not just fluorination.  “EPA cannot pursue a…rule selectively targeting fluorination,” the comments state.

For more on PFAS formed in plastic fluorination and the Inhance saga, explore our archive of blog posts on the topic.

EPA’s TSCA Pre-Prioritization Webinar

On September 30, 2024, a lead toxicologist in the Data Gathering Management and Policy Division within the Office of Pollution Prevent and Toxics presented an overview of prioritization and pre-prioritization efforts for existing chemicals under the Toxic Substances Control Act (TSCA). The Agency’s goal was to collaborate with attendees to evaluate the potential risks of existing industrial chemicals regulated under TSCA. Topics covered included a high-level overview of TSCA authorities, requirements, and timelines for evaluating existing chemicals. Additionally, EPA covered the Agency’s approach for identifying the chemicals that may undergo prioritization.

Under TSCA, EPA is required to evaluate the potential risks of chemical substances comprehensively, taking into account their cradle-to-grave life cycle. This process involves assessing the chemical’s potential exposure and risks from production through disposal and includes all identified uses.  First, the webinar touched on the key aspects for the Risk Evaluation process.

  • Cradle-to-Grave Analysis
    • 6-Year Timeline for Risk Regulation
      • Initiation and Prioritization: 9-12 months.
      • Risk Evaluation: 3 to 3.5 years.
      • Regulation Development: Remainder of the timeline as needed.
  • Public Engagement and Information Gathering

EPA then noted that the prioritization process reflects the Agency’s evolving approach to addressing chemical risks efficiently and inclusively under TSCA. EPA identified 27 chemical substances that are being considered for prioritization under TSCA, focusing on their inclusion in the 2014 TSCA Work Plan, the interests of other agencies, and the availability of hazard and exposure data. The 2014 TSCA Work Plan identified approximately 90 chemicals as priorities for risk evaluation based on hazards, exposure risks, and their environmental or health impact. In addition, three chemical substances that were not listed in the 2014 Work plan are being considered for prioritization Two of these chemicals were identified through TSCA Section 21 petitions:  Hydrogen fluoride (HF) and 6PPD.  Bisphenol S (BPS) is also being considered for prioritization.  The Agency explained that BPS could become a priority if bisphenol A (BPA) undergoes prioritization, as BPS is a key alternative to BPA in the market.

EPA reminded participants that the Agency uses Section 4 and Section 8 under TSCA to gather data on the chemicals for prioritization, risk evaluation, and risk management. TSCA Section 4 provides authority for mandatory testing of chemicals to fill data gaps through test orders, test rules, and consent agreements. TSCA Section 8 allows for reporting and recordkeeping of existing chemical-related data, including reports of significant adverse health or environmental reactions.

The Agency noted that it prioritizes chemicals with robust existing data to streamline risk evaluation and reduce delays caused by insufficient information. The inclusion of both 2014 TSCA Work Plan chemicals and newly highlighted substances reflects intent to address historical priorities while also adapting to emerging concerns raised by stakeholders or other agencies.

 

Work Plan Chemicals:

1-Hexadecanol
2-Ethylhexyl
tetrabromobenzoate (TBB)
4-tert-Octylphenol (4-(1,1,3,3-Tetramethylbutyl)-phenol)
Benzene
bis(2-Ethylhexyl) – 3,4,5,6-Tetrabromophthalate (TBPH)
Bisphenol A
Creosote
Di-n-octyl phthalate (DnOP)
Ethylbenzene
Naphthalene
N-Nitroso-diphenylamine
p,p’-Oxybis(benzenesulfonylhydrazide)
Styrene
Tribromomethane
Triglycidyl isocyanurate
m-Xylene
o-Xylene
p-Xylene
Antimony & Antimony Compounds
Arsenic & Arsenic Compounds
Cobalt & Cobalt Compounds
Lead & Lead Compounds
Long-chain chlorinated paraffins (C18-20)
Medium-chain chlorinated paraffins (C14-17)

Non-Work Plan Chemicals:

Bisphenol S
Hydrogen fluoride
N-(1,3-Dimethylbutyl)-N’-phenyl-pphenylenediamine (6PPD)

EPA Revises New Chemicals Review Process

On December 18, 2024, EPA published a final rule revising the new chemicals review provisions under the Toxic Substances Control Act (TSCA).  The rule:

  • Requires an EPA determination on each notice before a submitter may begin manufacturing or processing the chemical, as mandated by amended TSCA;
  • Clarifies the level of detail expected for premanufacture notices (PMNs), significant new use notices (SNUNs), and exemption notices;
  • Modifies EPA’s review process for PMNs and SNUNs, including procedures for handling incomplete or inaccurate submissions;
  • Revises the regulations for low volume exemptions (LVEs) and low releases and low exposures exemptions (LoREXs) to require submitters to wait for EPA approval prior to manufacture; and
  • Prohibits PFAS and certain PBTs from qualifying for LVE and LoREX exemptions.

EPA’s clarification of existing PMN requirements includes greater detail on products that would contain the chemical, manufacturing processes, worker exposures, and releases.  To effectuate these changes, EPA is introducing new reporting fields to the PMN form.

One key change to the procedures for handling incomplete submissions is that EPA will now declare a submission incomplete and restart the review process if a submitter provides required information that was known or reasonably ascertainable at the time of the original submission.  Previously, EPA’s “longstanding practice” was to accept the amendments along with a request to suspend the review period.

Restrained Approach

The final rule largely follows EPA’s May 2023 proposal.  In response to comments, EPA agreed to proactively notify current LVE and LoREX holders about significant new use rules (SNURs) that apply to their chemicals, rather than only providing notice prospectively as originally proposed.  EPA also agreed to expressly codify that the agency has authority to strengthen protections in TSCA section 5 orders based on new information from any source.

Environmental organizations urged EPA to revoke previously granted LVEs for PFAS, but the agency declined to do so in the rule.  However, EPA left open the possibility of future revocations, stating that it “may take future action on a case-by-case basis.”  In general, EPA has not granted new LVEs for PFAS since 2021.

Industry groups, on the other hand, unsuccessfully pushed for more streamlined TSCA section 5 notices.  Among their rejected proposals was a request that EPA only require specific data elements on a case-by-case basis.

The rule takes effect January 17, 2025, shortly before the presidential transition.

Briefs Filed in Sweeping Challenge to EPA’s Methylene Chloride Rule

Opening briefs have been filed by industry petitioners, the Sierra Club, and EPA in a case challenging EPA’s 2024 rule banning most uses of methylene chloride.  The lawsuit has critical implications not only for EPA’s regulation of the solvent but for future risk management rules and risk evaluations promulgated under the Toxic Substances Control Act (TSCA).

The case, East Fork Enterprises Inc. v. EPA, No. 24-60256, is before the Fifth Circuit.  Industry petitioners are requesting that the court vacate the methylene chloride rule and its underlying risk evaluation in their entirety.  The Sierra Club, taking the opposite position, contends the rule does not go far enough but seeks only a remand to EPA without vacatur.

“Extreme” Risk Evaluation

One of the central arguments in the industry petitioners’ October 9 brief is that EPA’s methylene chloride risk evaluation conflated the potential for any harm with “unreasonable risk,” the threshold for regulation under TSCA.  “EPA treated a use as risky if there was even a theoretical possibility of health risks,” the brief states, a stance described as “contrary to the statutory text and Congress’s regulatory structure.”

The industry petitioners argue this approach represents massive EPA overreach.  “Under EPA’s extreme (and incorrect) reading of TSCA, EPA can prohibit a wide range of commercial activities simply by saying a chemical substance poses unreasonable risk,” the brief continues.

In its opening brief, filed December 13, EPA argues that the agency has sole discretion to determine what constitutes unreasonable risk.  “Congress assigned to EPA the task of determining what risks are ‘unreasonable’ for a given chemical substance based on EPA’s scientific and technical expertise,” the agency states.  “Applications of that expertise are entitled to the Court’s respect.”

Last term, the Supreme Court struck down Chevron deference—a longstanding precedent requiring courts to defer to “permissible” agency interpretations of statutes they administer—in Loper Bright v. Raimondo. Nevertheless, EPA cites Loper Bright, emphasizing language clarifying that the Administrative Procedure Act “mandate[s] that judicial review of agency policymaking and factfinding be deferential.”

The industry petitioners also contend two policy reversals made by the Biden EPA regarding risk evaluations: the adoption of a “single determination” of a chemical’s risk and the removal of the assumption that workers use personal protective equipment. These changes led the Biden EPA to replace a Trump-era methylene chloride risk evaluation with a revised version in 2022.

“Assumption Upon Assumption”

Other industry attacks focus on the risk management rule’s stringent limits on methylene chloride exposure concentrations, which are significantly lower than OSHA’s.  According to the industry petitioners, EPA ignored human exposure studies, relied on a single rat study, and “piled assumption upon assumption upon uncertainty” to reduce the acceptable exposure level “100-fold.”

In response, EPA contends that the industry petitioners misunderstand the toxicology underlying the limits. The agency also defends its use of “uncertainty factors” to extrapolate findings from limited studies, including a policy of basing certain calculations on the 1st percentile of human susceptibility to ensure more conservative protections.

These strict exposure limits prompted EPA to ban many uses of methylene chloride in the risk management rule. EPA argues that it had reason to believe compliance with the limits was not feasible for the banned uses, while the industry petitioners claim the bans were implemented “simply because EPA was uncertain whether businesses would be able to comply with EPA’s new exposure limits.”

Fenceline Communities

The Sierra Club’s challenge is comparatively narrow, primarily focusing on methylene chloride’s risks to fenceline communities.  In a supplement to its risk evaluation, EPA found that methylene chloride air releases elevated cancer risks in these communities.  However, EPA “never determined whether those risks are unreasonable” and “fail[ed] to address those risks” in the risk management rule, the Sierra Club’s October 9 brief states.

In its brief, EPA acknowledges that it “identified some existing risk to fenceline communities” but argues that the risk management rule “adequately address[es] that risk.”  TSCA does not require EPA to “formally determine” whether the risks identified in the supplement were unreasonable because it was conducted after the risk evaluation was completed, the brief argues.  Instead, EPA “opted to factor in the potential risk to fenceline communities as a human health effect that informed the Rule’s choice of restrictions.”

The Sierra Club also challenges EPA’s failure to evaluate the risk methylene chloride poses to the ozone layer, while EPA maintains that the chemical “is not an ozone depleting substance.”

More on EPA’s methylene chloride risk management rule can be found here.