California’s Office of Environmental Health Hazard Assessment (“OEHHA”) added Bisphenol A (“BPA”) to the Proposition 65 (“Prop 65”) list as a chemical known to cause reproductive toxicity, on May 11, 2015. Prop 65 provides companies with a one year grace period before having to comply with newly listed chemicals, meaning that as of May 11, 2016, companies must provide a Prop 65 warning for exposures to BPA. As a result, companies are in a mad dash to eliminate BPA from products and/or add Prop 65 warnings to products containing BPA that will be sold in California.
On March 17, 2016, OEHHA took action under the Emergency Rulemaking Process to allow a temporary use of a standard point-of-sale warning message for BPA exposures from canned and bottled food and beverage products—this regulation would eliminate the need for placement of Prop 65 warnings for BPA on individual products. Instead, a warning at the cash register or check-out line concerning BPA would be deemed an acceptable alternative.
OEHHA has stated that “canned and bottled foods and beverages” means food and beverages packaged in hermetically sealed, durable metal or glass containers, including, but not limited to, fruits, vegetables, soups, pasta products, milk, soda, and alcoholic beverages. OEHHA is proposing the regulation because it understands that even though companies in these industries are taking steps to remove BPA from their products, it will take time to sell thru existing retail inventories. OEHHA also is hoping to avoid a situation where retailers have to pull large amounts of canned food and beverage products from California due to the upcoming deadline to warn for products containing BPA.
The proposed warning language for the BPA point-of-sale warning is as follows:
WARNING. Many cans containing food and beverages sold here have epoxy linings used to avoid microbial contamination and extend shelf life. Lids on jars and caps on bottles may also have epoxy linings. Some of these linings can leach small amount of bisphenol A (BPA) into the food or beverage. BPA is a chemical known to the State of California to cause harm to the female reproductive system. For more information go to: www.P65Warnings.ca.gov/BPA.
If adopted, the manufacturer, producer, packager, importer or distributor of the canned or bottled food or beverage can either place a Prop 65 warning to the product that meets the existing requirements of the law (the standard safe harbor warning), or provide written notice through its agent or trader association to the retailer or its authorized agent. The notice must inform the retailer that a warning is required for the product, include the exact name or description of the product that requires the warning (such as the UPC number or other identifying designation), and provide or offer to provide a number of point-of-sale warning signs that contain the warning language listed above. The retailer receiving the notice must post the point-of-sale warning signs and is responsible for placement and maintenance of the signs.
A point-of-sale sign is a better option for manufacturers and distributors and, if effectively utilized by retailers, could help reduce Prop 65 lawsuits regarding BPA in these products by Prop 65 plaintiffs (also known as “bounty hunters”). The emergency regulation would expire in 180 days but during that period OEHHA will proceed with a regular rulemaking process to extend it as an interim measure for a one-year period from the date of adoption. It may provide some relief to food and beverage companies in the short-term, but food and beverage companies should continue to take action to address BPA in their products—either by working to remove potential BPA exposures or moving toward use of a Prop 65 warning for such exposures.
 A warning is not required if exposure to BPA in the product will have no observable effect assuming exposure at 1,000 times the level in question (the maximum allowable dose level, or MADL). There is no simple test to determine whether a product containing BPA is below the MADL and to make such a determination requires the assistance of an expert toxicologist experienced in conducting Prop 65 exposure assessments.