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California's Proposition 65: Beep Beep, BPA Labeling

California proposes to amend Prop 65 warning requirements for BPA in canned and bottled foods and beverages.

  • In May 2015, California’s Office of Environmental Health Hazard Assessment (OEHHA) added bisphenol A (BPA) to the Prop 65 list as a reproductive toxicant. On April 18, 2016, OEHHA implemented an emergency regulation for BPA, providing a safe harbor warning strategy to address exposures to this chemical from packaged foods and beverages sold at retail.  The emergency rulemaking allowed the use of point-of-sale (POS) signage to indicate exposures from BPA present in cans, lids, and caps of packaged foods and beverages at retail stores until October 17, 2016. 

  • On July 22, 2016, OEHHA issued a proposed rule that would permit POS signage for BPA until December 30, 2017. The proposed rule is substantially similar to the emergency regulations promulgated earlier this year.  However, there is a significant difference in the proposal for foods that: (1) are covered under the POS signage requirement (i.e., BPA present in the can coating, lid, or cap); and (2) do not bear an on-label BPA warning. The proposal would require manufacturers, producers, packagers, importers, or distributors of foods in BPA-containing packages to send OEHHA specific information about the products to post on the “lead agency website” (in addition to sending similar information to retailers).  The proposal focuses on BPA that is intentionally used in food packaging.  OEHHA does not want manufacturers sending in information for posting on the lead agency website where BPA is unintentionally present.

  • OEHHA anticipates that by December 30, 2017, manufacturers either will have eliminated BPA from product packaging, labeled their products with a BPA warning, or provided retailers with shelf tags and signs. The final compliance option produces some confusion, as OEHHA has stated that part of the rationale for the emergency rulemaking was to avoid there being hundreds of shelf tags on retail shelves.  A public hearing on the proposal is scheduled for September 12 and comments are due by September 26.

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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...