The California Proposition 65 warning requirement for Bisphenol-A (BPA) takes effect on May 11, 2016. After May 10, products that contain BPA sold in California without a Prop. 65 warning could subject retailers, manufacturers and distributors to liability.
BPA is an industrial chemical that is used in a wide variety of plastic consumer products, including the epoxy lining in food and beverage cans and bottle lids, some reusable food and drink containers, CDs and DVDs, electronic equipment, sports equipment, and adhesives and paints, including the ink used for many receipts. BPA may be more likely to be present in plastics with the recycling indicator 7.
Prop. 65 prohibits businesses from "knowingly and intentionally" exposing California consumers to a chemical known to the state of California to cause cancer or reproductive toxicity without first providing a "clear and reasonable warning." (Health & Safety Code § 25249.6). BPA has been listed under Prop. 65 as a chemical known to the state of California to cause reproductive harm. Companies that sell products containing BPA in California without a Prop. 65 warning after May 10 may be subject to potential liability of up to $2,500 per day for each violation. (Cal. Health & Safety Code § 25249.7). Each sale can constitute a potential violation, and attorneys’ fees also are available under California’s private attorney general statute. (Cal. Civ. Proc. Code § 1021.5).
Emergency Regulation Would Allow Temporary Point-of-Sale Warning for Canned and Bottled Foods and Beverages
California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed an emergency regulation to allow a temporary point-of-sale warning for BPA exposures from canned and bottled foods and beverages. The emergency regulation specifies that the following warning language should be used:
WARNING: Many cans containing foods and beverages sold here have epoxy linings used to avoid microbial contamination and extend shelf life. Lids on jars and caps on bottles may also have epoxy linings. Some of these linings can leach small amounts of bisphenol A (BPA) into the food or beverage. BPA is known to the State of California to cause harm to the female reproductive system. For more information, go to www.oehha.ca.gov/BPA.
The warning must be at least 5 inches by 5 inches in size, and the word "WARNING" must appear in bold capital letters. Manufacturers of canned and bottled food and beverages can comply with the warning requirement by providing written notice to retailers that identifies the products at issue and provides warning signs to post at point-of-sale devices.
Retailers that sell canned and bottled foods and beverages can comply by posting the signs at all point-of-sale devices. If adopted, the emergency regulation would expire in 180 days. However, OEHHA intends to adopt a regulation extending the temporary point-of-sale warnings for an additional year in order to allow manufacturers time to provide more product-specific warnings or to reformulate using BPA alternatives, and for safe harbor levels for exposure to BPA to be established.
The emergency regulations only apply to BPA in canned and bottled foods and beverages. All other products that contain BPA may subject the sellers to liability if they are sold in California on or after May 11 without a warning.
OEHHA Has Proposed A Safe Harbor Level of No More Than 3 Micrograms Per Day for Dermal Exposure
OEHHA has not yet adopted a safe harbor level for exposure to BPA below which no warning is required, but recently proposed a safe harbor level of 3 micrograms per day for dermal BPA exposure from solid materials. The safe harbor level will not be adopted prior to May 11, when the warning requirement takes effect, but may provide guidance in compliance testing. OEHHA is accepting public comment on the proposed safe harbor level through May 16.
Manufacturers, Retailers and Distributors Can Take Steps to Reduce Potential Liability
Manufacturers should determine whether their products contain BPA, and if so, consider whether to reformulate or sell the products with a Proposition 65 warning in California. Since reformulation may take time and no safe harbor levels have been established for BPA, in the interim manufacturers should consider labeling the products with a warning, or providing shelf warnings and instructing retailers to post them wherever the products are displayed or sold.
Retailers should consider whether to sell products that contain BPA with a warning, or seek advice from their suppliers. Retailers should also investigate whether they have contractual indemnity provisions from the relevant vendors in case of liability.