Last year the State of California added Bisphenol A (BPA) to its list of chemicals known to cause cancer or reproductive harm under Prop 65 [the Safe Drinking Water and Toxic Enforcement Act of 1986], a law which requires warnings for such exposures in California. The warning requirement kicked in a year later – May 11, 2016.

BPA is commonly used in plastics, to soften what might be a hard and brittle plastic piece. Other softeners were previously listed and the lawsuit notices have flooded in. With BPA’s later listing, industry thought the California Office of Environmental Health Hazard Assessment (OEHHA) would have an opportunity to sample and analyze BPA-containing products, and to consider a “safe harbor” level for that chemical, a level of exposure which makes a Prop 65 warning unnecessary. OEHHA was unable to do so, so the Prop 65 warnings must be affixed to products whose plastic pieces contain BPA.

But a specialized use of BPA-containing products raises new issues which California is addressing through emergency regulation — BPA in the linings of metal cans and lids of glass bottles containing food and beverage.

Last month OEHHA realized that retail stores still have hundreds of products which were shipped before the Prop 65 warnings were required, and if those stores placed on-shelf warnings, consumers could be inundated with hundreds of confusing and possibly conflicting warnings. It could result in consumers ignoring the ubiquitous warnings. So OEHHA issued an emergency regulation imposing a requirement that stores post warning signs at the cash registers, and reference BPA and the product.

Currently, a “clear and reasonable” Prop 65 warning does not have to list the specific chemical or product. The language offered in the statute provides: “WARNING. This product contains a chemical known to the State of California to cause cancer or reproductive harm.”

The emergency regulations and modifications to existing law allow for a point-of-sale [cash register] sign for food product containers, but it must identify BPA and provide a link to a source of information:

“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.”

The emergency provision only applies to food and beverage containers. Allowing this point-of-sale warning gives OEHHA a year to continue its testing to see what types and amounts of BPA require warnings. The blanket warning will cover the entities seeking to comply with the warning regulations. OEHHA hopes companies will reformulate, as some have, and do away with the BPA in its liners.

New chemical listings on Prop 65 always generate new pre-litigation notices by private parties. We expect an increase in Prop 65 notices — 60 Day Notice of Intent to File Suit — for all types of BPA-containing products. Points-of-sale that lack the BPA signs might be an easy target for these private plaintiffs.