May 11, 2016 Deadline to Post Proposition 65 Warnings for Food and Beverage-Based BPA Exposures

May 11, 2016 Deadline to Post Proposition 65
Warnings for Food and Beverage-Based BPA Exposures

By Renee D. Wasserman and Suhani Kamdar

On May 11, 2015, the Office of Environmental Health Hazard Assessment (OEHHA) placed bisphenol A (BPA) on the Proposition 65 list of chemicals known to cause reproductive toxicity, making BPA exposure enforceable under Proposition 65 as of May 11, 2016. Many consumer goods contain BPA, but of particular significance is that it is found in epoxy resins used to line metal food and beverage cans and in lids or caps for glass jars and bottles. Under a short-term, emergency regulation issued by OEHHA, effective May 11, 2016 and for 180 days thereafter, a specific safe harbor warning can be utilized for oral exposures to BPA, which may occur when foods and beverages are consumed. The only exception to the use of the warning is if the person causing the exposure can show that the exposure is 1,000 times below the no observable effect level for BPA, in which case the product would not require a warning. Given the inherent complexities and expense involved in making such a showing, especially since OEHHA has not set a Maximum Allowable Dose Level (MADL) for oral exposure, the specific BPA safe harbor warning should be provided.

Although the authorized warning is complicated by the lack of scientific consensus on BPA and by its ubiquitous presence, OEHHA’s emergency regulation confers benefits to retailers. As opposed to a product-specific warning, the approved warning covers the entire category of canned and bottled foods and beverages, so long as it is placed at each cash register/point of sale in the retail establishment and on the website where sold.

Point-of-Sale Warnings for Oral Exposure to BPA

OEHHA’s short-term emergency regulation provides that an on-product warning label or point-of-sale sign can be provided for canned and bottled foods and beverages offered for sale on or after May 11, 2016. Under section 25603.3(g) of the Safe Drinking Water and Toxic Enforcement Act, the safe harbor point-of-sale sign must be at least 5×5 inches in size and must state:

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: http://www.P65Warnings.ca.gov/BPA.

Note that the word “WARNING” must be in bold font and capital letters.

Manufacturers, producers, packagers, importers or distributors of canned and bottled foods and beverages are required to provide retailers with written notice of the need to post the warning sign. See Cal. Health & Safety Code §25603.3(f)(1). Suppliers may provide notice either directly or through their authorized agents or a trade association. Id. Suppliers are also required to provide or offer to provide retailers with a sufficient number of the required signs, at no cost. Id. However, retailers should not wait for direction from their suppliers. Retailers who post their own signs will benefit from the protections of the emergency regulation as long as they meet content, size and placement requirements. Given the warning language, posting of the signs will not constitute an admission as to the presence of BPA at any particular level, but will enable retailers to avoid liability for BPA in an entire category of food and beverage cans, jars and bottles.

Retailers who wish to take advantage of this safe harbor must post and maintain the 5×5 inches (or larger) signs at each point of sale in the retail facility (i.e. at each cash register or check-out line as well as the electronic check-out function on internet websites). Id. at § 25603.3(f)(2). The regulation specifies that the “placement and maintenance of warning signs is the responsibility of the retail seller of the affected products.” Id. The warning must be displayed with “conspicuousness” as compared with other words, statements, designs or devices displayed at the point of sale so that it may be read and understood by an ordinary individual prior to purchase. Id. at § 25603.3(g). For internet purchases, the warning must be provided either on the product display page or otherwise be prominently displayed to the purchaser prior to completing the purchase. Id.

Regulatory Timeframe

The emergency regulation goes into effect on May 11, 2016, and thus retailers of food and beverage products sold in metal cans, glass bottles or glass jars must soon complete the process of placing warnings at each point of sale if they desire the protection of the emergency regulation. Retailers with an on-line presence will also have to confirm that their website displays the required warning on each product display page. Although the regulation will expire 180 days from May 11, 2016, OEHHA is expected to adopt this emergency regulation as an interim regulation for a one-year period. Thus, this regulation or a very similar version will be in effect up until November 2017.

We expect continued regulatory developments regarding oral as well as dermal exposures to BPA from consumer products. As OEHHA has also proposed establishing a Proposition 65 MADL for BPA of 3 micrograms per day for dermal exposure from solid materials such as products made of hard plastics and polycarbonates, we will monitor the rulemaking process for both types of BPA exposure.

The Office of Administrative Law’s Approval of the BPA Regulation is available here.

How We Can Help Your Company

Rogers Joseph O’Donnell specializes in Proposition 65 litigation and helping its clients comply with state and federal laws impacting the sale of food and consumer products. If you have any questions related to compliance with Proposition 65, Renee D. Wasserman (rwasserman@rjo.com), James Robert Maxwell (jmaxwell@rjo.com), Suhani Kamdar (skamdar@rjo.com) and Alecia Cotton (acotton@rjo.com) are available to assist with any matters. Biographies and other contact information are available at https://www.rjo.com.

The content of this article is intended to provide a general guide to the subject matter and is not a substitute for legal advice.