California's Office of Environmental Health Hazard Assessment (OEHHA), which administers Proposition 65 (formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986), has proposed rulemaking to extend most aspects of its emergency April 2016 rulemaking that permits point-of-sale signage for certain foods in packaging in which Bisphenol A (BPA) is intentionally used as a component of the packaging. The proposal would continue to permit point-of-sale signage regarding the potential exposure to BPA from cans, lids, and caps in contact with food; however, the proposal would require companies to submit to OEHHA lists of foods for posting on OEHHA's Lead Agency Website in which BPA has been intentionally added to can linings, lids, and caps. This aspect of the proposal is intended to permit consumers to obtain further information as to which products are covered by the point-of-sale signage.

The listing for BPA as a female reproductive toxicant became effective on May 11, 2016. OEHHA issued emergency rulemaking on April 19, 2016 to allow point-of-sale warning signage for BPA in certain packaged foods:

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.

Key public health justifications for the emergency rulemaking were to prevent manufacturers and retailers from removing canned and bottled foods and beverages from shelves due to a lack of warning or placing multiple and inconsistent warnings on products and/or signage throughout a retail facility, which could result in confusion and unnecessary adverse impacts on public access to nutritious food, particularly for California's most vulnerable communities. When OEHHA issued the emergency rulemaking, it committed to issuing a longer term solution before the 180 day emergency rulemaking expires on October 17, 2016.

The proposed rule would permit the current point-of-sale signage until December 30, 2017. OEHHA states that this should be an adequate sell-through time for canned and bottled foods manufactured prior to or shortly after the May 2015 listing date for BPA. OEHHA anticipates that, by December 30, 2017, manufacturers will have eliminated BPA from its packaging, labeled its products with a BPA warning, or provided retailers with shelf tags or signs.

The proposal is nearly identical to the emergency rulemaking, except that there is a significant new potential burden on manufacturers, producers, packagers, importers, or distributors of foods whose cans, lids, or caps contain intentionally added BPA (e.g., as opposed to BPA that is present as a result of cross-contamination). Specifically, food manufacturers, producers, packagers, importers, or distributors whose products are covered under the point-of-sale signage (i.e., where BPA is unintentionally present in the can coating, lid, or cap) and whose products do not bear an on-label BPA warning would be required to send OEHHA the following information to post on its recently established Lead Agency Website (at https://www.p65warnings.ca.gov/, more information available here):

  1. "A list of all foods for which a warning is being provided in which BPA was intentionally used in the manufacture of the can lining or jar or bottle seals."
    • Identification of the food by: 
    • Brand name,
    • A description of the product description, including "the federal Food and Drug Administration product category for the food,
    • "Universal Product Code (UPC) or other specific identifying designation, and
    • If BPA is no longer intentionally used in the can, lid, or cap but there is product still available in commerce with intentionally added BPA, the last expiration or "use by" date for the product where BPA was intentionally used in the can lining, lid, or cap.

This information will be posted to the Lead Agency Website so that consumers can determine which products are covered under the point-of-sale signage. Consumers had complained that the emergency rulemaking did not provide enough information to make informed purchasing decisions.

The requirement to provide information to OEHHA is in addition to the requirement (under the emergency and proposed rulemaking) that manufacturers, producers, packagers, importers, or distributors provide retailers with a written notice including a statement that the canned or bottled food or beverage may result in an exposure to bisphenol A and including the brand and name or description of the canned or bottled food or beverage (and its UPC or other specific identifying designation). Moreover, the manufacturer, producer, packager, importer or distributor of the canned bottle food or beverage must provide (or offer to provide) to the retailer, at no cost, point-of-sale warning signs.

The proposal only applies to BPA when it is intentionally used in can linings and seals (caps/lids) because OEHHA does not want manufacturers to send information for posting on its Lead Agency Website if BPA is unintentionally present so as not to overwarn. OEHHA states that cross-contamination is an example of a situation in which BPA is not intentionally used in the packaging but may be present in the food.

Comments on the proposal are being accepted until September 26, 2016. The proposed rule and Initial Statement of Reasons is available at http://oehha.ca.gov/proposition-65/crnr/notice-proposed-rulemaking-and-announcement-public-hearing-amendment-section.