Effective May 11, 2016, manufacturers that make products containing Bisphenol A (“BPA”) will be required to comply with California’s Safe Drinking Water and Toxic Enforcement Act of 1986, also known as “Prop 65.” More specifically, manufacturers, distributors, and retailers of such products must ensure that by no later than May 11, 2016, consumers are provided a “clear and reasonable warning” regarding the hazards associated with BPA.
This compliance deadline was established in May 2015, when the California Office of Environmental Health Hazard Assessment (“OEHHA”) added BPA to its list of chemicals known to the State of California to cause reproductive toxicity following the conclusion of a lawsuit challenging its prior listing of BPA in April 2013. This May 2015 listing triggered a requirement that all products containing BPA be accompanied by a “clear and reasonable warning” regarding BPA’s hazards, which requirement takes effect one year after the OEHHA listing date under California law. While OEHHA can establish a “safe harbor” level for BPA that might exempt products containing BPA below that level from the warning requirement, as of this writing OEHHA has not yet established such a safe harbor level for BPA. Accordingly, manufacturers and other regulated entities must either comply with the Prop 65 warning requirements or have sufficient evidence to support a claim that the levels of BPA in their products do not pose a significant risk of reproductive toxicity.
While there are multiple methods of complying with the Prop 65 warning requirements for BPA, implementing these compliance methods can be time-consuming and expensive. The penalties for failing to do so can also be significant, through either government agency enforcement actions or private lawsuits. Accordingly, to the extent they have not already done so, affected parties, including manufacturers, should formulate and execute plans for complying with the May 11, 2016 deadline.