Why it matters: BPA remains prevalent in the packaging of food and beverage items sold by retailers throughout California. Most commonly, it is found in the lining used inside of metal-based food and beverage containers, as well as lids for glass jars and bottles. Beginning May 11, 2016, all such products containing BPA must comply with all applicable Prop 65 warning requirements. Responding to concerns raised by retailers and others, on April 18, 2016, California regulators approved an emergency regulation offering retailers a temporary point-of-sale safe harbor warning message as an option to comply with this rule change.
Detailed discussion: A new California regulation, effective May 11, 2016, will require Prop 65 warnings for all products that expose customers to BPA. This rule change will have widespread implications to retailers that sell food and beverages with packaging that contains or is lined with BPA.
Given the volume of products impacted by this rule change, regulators recognize that this sudden and substantial increase in the prevalence of Prop 65 warnings on packaged food and beverages would likely confuse and potentially overwhelm consumers. To address these concerns, California approved an emergency interim regulation offering retailers a standard point-of-sale "safe harbor" warning message for oral BPA exposure from canned and bottled food and beverages. The proposed safe harbor message, which must be prominently displayed at all points of sale, is as follows:
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.
There are a number of important limitations to the safe harbor. First, it is set to expire on October 18, 2016. Second, it only applies to food and beverages—meaning on May 11, 2016, nonfood and nonbeverage products exposing customers to BPA must comply with standard Prop 65 warning requirements.
Because the safe harbor was only approved last week, it leaves very little time for retailers to develop and implement a compliance plan.