12 Aug 2016
California Proposes to Extend Certain Proposition 65 Requirements on BPA Warnings for Canned and Bottled Foods
California’s Office of Environmental Health Hazard Assessment has launched a rulemaking process to amend the Proposition 65 warning requirements for bisphenol A. Commonly used in certain linings of metal cans and lids of glass bottles containing food and beverages, BPA was added to the Proposition 65 list on 11 May 2015 following a determination that it causes reproductive toxicity on the female reproductive end-point. Beginning on 11 May 2016, warnings are required for all exposures to BPA from canned and bottled foods and beverages unless the person causing the exposure can show that the exposure, when multiplied by 1,000 times, has no observable effect. A product does not require a warning simply because it contains BPA or any other chemical listed under Proposition 65, but rather when a business knowingly and intentionally causes an exposure to a listed chemical.
Because canned and bottled foods and beverages have a longer shelf life and products manufactured prior to 11 May 2016 are still in the market, OEHHA issued an emergency regulation to allow the temporary use of a standard point-of-sale warning message for BPA exposures from canned and bottled foods and beverages until warnings could be placed on newly manufactured cans and/or BPA is removed from the linings. Specifically, a business is currently deemed to comply with the BPA warning requirement if the manufacturer, producer, packager, importer or distributor of the canned or bottled food or beverage either:
- affixes a label to the product bearing a warning that satisfies the Proposition 65 requirements; or
- provides written notice directly or through an authorised agent or trade association to the retailer or its authorised agent (i) stating that the canned or bottled food or beverage may result in an exposure to BPA, (ii) including the name or description of the canned or bottled food or beverage for which a warning is being provided, such as a Universal Product Code or other identifying designation, and (iii) providing or offering to provide to the retail seller at no cost a sufficient number of point-of-sale warning signs that satisfy the requirements of Proposition 65.
If the retail seller receives the notice mentioned above, it is required to post the warning sign at each point-of-sale in the retail facility. The placement and maintenance of warning signs is the responsibility of the retail seller of the affected products. The term point-of-sale is defined as the area within a retail facility where customers pay for foods and beverages, such as the cash register or check-out line where the warning sign is likely to be seen and understood prior to the consumer purchasing the canned or bottled food or beverage. Point-of-sale also includes electronic check-out functions on Internet websites.
Because emergency regulations are only valid for 180 days, OEHHA is proposing a regular rulemaking to establish a continuance of the emergency regulation on BPA with certain changes to reflect the various comments received on this matter. The new regulation would expire at the end of 2017 unless re-enacted. OEHHA will hold a hearing on this proposal on 12 September and will accept public comments by 26 September.
OEHHA also recently established a maximum allowable dose level of three micrograms per day for dermal exposure from solid materials to BPA, effective from 1 October. The agency has not yet established maximum allowable dose levels for oral exposures to BPA from ingestion of canned or bottled foods and beverages, however. OEHHA is waiting for research sponsored by the federal government that may resolve complicated scientific questions that would enable the agency to establish such a maximum allowed dose levels. However, that research is not expected to be completed until late 2017 or early 2018.