California Finalizes Proposition 65 Rule Regarding Point-Of- Sale Warnings for Bisphenol A (BPA)
On December 2, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) finalized its regulation regarding point-of-sale (POS) warnings for canned and bottled foods and beverages if bisphenol A (BPA) has been intentionally used in a can, lid, or cap. POS warnings will be permitted for such foods and beverages until December 30, 2017. After that date, businesses will need to provide warnings pursuant to the more general clear and reasonable warning provisions of the regulations, unless OEHHA further extends the expiration date for use of POS warnings.
To rely on the signage as a safe harbor, however, OEHHA is requiring that manufacturers submit information to OEHHA by the end of the year for inclusion in an online database of products, if BPA is intentionally used in the can, lid, or cap. If BPA is intentionally used in the can, lid, or cap and one does not report into OEHHA for inclusion in the database, there is the potential for a plaintiff to take enforcement action for failure to warn. Additional details are summarized below.
Until December 31, 2017, OEHHA will permit POS signage in retail stores that states:
WARNING: Many food and beverage cans have linings containing bisphenol A (BPA), a chemical known to the State of California to cause harm to the female reproductive system. Jar lids and bottle caps may also contain BPA. You can be exposed to BPA when you consume foods or beverages packaged in these containers.For more information, go to: www.P65Warnings.ca.gov/BPA.
Manufacturers whose cans, lids, and caps contain intentionally added BPA will only enjoy the benefits of this signage as a safe harbor, however, if they provide the following information to OEHHA for inclusion on their online database that will include for each food:
The product brand name
A product description, including the federal Food and Drug Administration product category for the food or beverage
The Universal Product Code(UPC) or other specific identifying designation and
If BPA is no longer used in the manufacture of the product packaging but is still available for sale or in inventory, the last expiration or “use by” date for the product where bisphenol A was intentionally used in the can linings.
Though OEHHA has yet to launch the electronic portal to submit the required information to the database, OEHHA has stated that it “encourages businesses to provide the information to OEHHA prior to the effective date [of January 1, 2017] to ensure it is available on the OEHHA website in a timely manner.” In the absence of additional guidance from OEHHA (e.g., whether it will accept entries to the database after December 31, 2016), manufacturers should be prepared to submit information to OEHHA by the effective date, by means other than the electronic portal if necessary, to ensure inclusion in the database if companies want to rely on the POS signage as a safe harbor.