California Proposes Extended (and More Detailed) Point-of-Sale Warning for BPA in Food-Related Containers

Insights August 8, 2016

On May 11, 2015, the chemical bispenol A (BPA) was added to the “Proposition 65” list of chemicals known to the State of California to cause either cancer or reproductive toxicity.  BPA is a known reproductive toxicant for females and is often used as an industrial chemical to make polycarbonate, a hard, clear plastic.  This is in many consumer products; from the colored plastic cups you take to the beach to the sunglasses you buy at the mall.  BPA is also contained in some thermal paper that is used as receipts by retail stores.  The larger health concern for the Office of Environmental Health Hazard Assessment (OEHHA), however, the state agency that enforces Proposition 65, is food-related containers.  That is because BPA is used to make epoxy resins and these can act as a lining inside some metal-based food and juice cans, or inside lids for jars.

On April 18, 2016, about a month before plaintiffs could begin serving notices of violation on companies for selling products containing BPA with no warnings (because it takes one year from a listing of a chemical to be able to notice a company for violating the law), OEHHA issued an emergency, 180-day regulation that provided a safe harbor for defendants to protect them from notices of violation if they provided temporary point-of-sale warnings for canned foods and beverages sold at the retail level.  The temporary warning had to specifically say that BPA causes harm to the female reproductive system and provide a link to OEHHA’s website for more information, and that contains a detailed fact sheet.  Hence, this temporary safe harbor warning is more detailed than the safe harbor warning currently permitted by Proposition 65’s regulations.  As the 180 will expire and cannot be renewed, OEHHA is proposing a formal rulemaking process to make this warning option a new regulation, but with a sunset date of December 30, 2017.  The thinking is that canned foods and beverages have a longer shelf life and so manufacturers and retailers should have additional time to clear out their existing stock and should be able to warn consumers at check-out stands of BPA in the interim prior to phasing out BPA from their materials, or until manufacturers can ship product with warnings printed as part of the products’ labeling.  Proposition 65 is a right-to-know law and, as long as a company warns, it is not in violation of the law.