New Regulations Related to Bisphenol A ("BPA")
California's Office of Environmental Health Hazard Assessment has recently issued further updated regulations related specifically to the chemical, Bisphenol A ("BPA"). OEHHA added BPA in the list of chemicals required under California's Safe Drinking Water and Toxic Enforcement Act of 1986 (referred to as "Proposition 65") in May 2015, and adopted specific warnings for exposures to BPA from canned and bottled foods and beverages on November 30, 2016.
BPA is found in the containers of various food and beverage products, including can linings, jars, and bottle seals. Due to the connectivity to food and the potential hazards of ingestion and dermal exposure, OEHHA has established some specific regulations for BPA.
Current Compliance Options
OEHHA allows compliance in one of two ways between now and December 31, 2017: (1) by utilizing a warning compliant with the current regulations; or (2) by complying with the alternative "point-of-sale" warning requirements. The second option requires the manufacturer, producer, packager, importer, or distributor to comply with three requirements and providing information to OEHHA and retailers:
- The upstream entity must provide OEHHA with specific information for each food or beverage product where BPA was used in the manufacturing of the can lining, jar, or bottle seals.
- The upstream entity must provide written notice to its retailer(s) identifying the products that may result in exposure to BPA and providing specific details regarding those products.
- The upstream entity must provide, or offer to provide, at no cost to the retail seller, a sufficient number of warning signs to be displayed at the point-of-sale by the retailer.
Akin to the burden shifting mechanism contained in the regulatory amendments, the onus for the BPA warnings appears to be primarily on the manufacturer or other upstream entity to inform the retailer of the need for a point-of-sale warning. However, if a retail seller receives the aforementioned notice from an upstream entity, that retail seller must then post and maintain a warning sign that satisfies the requirements of the regulation and bears liability for failure to do so.
Based on these requirements, retailers should contact their manufacturers or suppliers and inquire as to whether a Proposition 65 warning is required for any of their canned and bottled foods and beverages.
Important Dates and Deadlines for BPA Warnings.
On December 30, 2017, this point-of-sale warning alternative will no longer be an effective means for complying with the regulation for BPA. As the BPA warnings requirements will differ depending on when a business will be implementing such warnings, the following timeline provides some guidance:
Between Present Time and December 29, 2017: Businesses can comply by using a warning compliant with current Proposition 65 regulations or by providing the point of sale warning described above.
December 30, 2017 – August 29, 2018: The point of sale warning is no longer effective. Accordingly, businesses can comply by following the current regulations. Presumably, compliance with the amended regulations will also be sufficient.
After August 30, 2018: Businesses must follow the amended regulations in order to remain in compliance with the Proposition 65 requirements. (Please see the detailed WSHB update on the 2018 Amended Prop. 65 Regulations at proposition-65-amendments-who-is-impacted-and-how-to-comply-in-an-era-of-regulatory-change/.)