Turmoil for Food Brands: New Prop 65 Warning Requirement for BPA in Packaging

Just three weeks before new Proposition 65 warning requirements for BPA kick in, OEHHA has adopted emergency regulations that specify responsibilities for food manufacturers, retailers and others offering canned and bottled consumer goods for sale in the California marketplace.  Manufacturers, packagers, importers, distributors, retailers and other businesses in the chain of commerce need to acquaint themselves with the warning requirements so they will be in compliance come May 11, 2016, when the Prop 65 warning requirements take effect for BPA.  Emergency regulations are processed quickly – they were posted April 8 and approved April 18.

A year ago, the Office of Environmental Health Hazard Assessment (“OEHHA”) added bisphenol A (“BPA”) to the Prop 65 list of chemicals known to cause reproductive toxicity.  As of May 11, 2016, a Prop 65 warning will be required before a person is exposed to BPA, unless an exposure at 1,000 times the level in question is shown to have no observable effect.  Manufacturers have the difficult task of determining whether BPA in a product or its packaging causes an exposure that requires a Prop 65 warning.  This is particularly challenging since OEHHA has not yet adopted a maximum allowable dose level (“MADL” or “safe harbor”) for BPA.  (OEHHA posted a proposed MADL for dermal exposure in March, but that addresses only part of the potential exposure with food.)  Retailers are also in a difficult position, being largely unable to even identify which products on their shelves contain BPA.  Yet beginning May 11, all in the chain of commerce are vulnerable to citizen enforcement action if compliant warnings are not provided for products containing BPA.

BPA occurs in a wide range of consumer products, including food containers.  Epoxy coatings on the interior of cans and jar lids often contain BPA, and it is also a common component of polycarbonate plastic (number 7), adhesives and thermal paper (cash register receipts).  High levels of exposure cause developmental harm in laboratory animals, and scientists have long debated whether and at what levels BPA impacts human health.  BPA mimics hormones in the body, which are often biologically active at low levels.  A controversy over the potential health risk of BPA has been brewing for over a decade.  In 2010, Canada and European Union banned it from baby bottles, and a number of states followed suit, including California in 2013.

OEHHA is concerned about consumer confusion from widely inconsistent use of warnings in the marketplace with respect to food and beverages.  In an effort to smooth the transition, OEHHA’s emergency regulation allows temporary use of a standard point-of-sale warning for BPA exposures from canned and bottled foods and beverages.  Under the emergency regulation, food manufacturers, importers, and packagers may either affix a warning directly to their product, or notify the retailer that specific products may expose consumers to BPA.  Retailers must display the BPA warning at the point of sale.  Unlike the typical Prop 65 warning, the BPA warning specifically mentions BPA and identifies cans, jar lids and bottle caps as potential sources of exposure.

TAKE ACTION NOW.  All businesses should familiarize themselves with Prop 65 warning requirements and ensure their implementation, or face costly enforcement litigation from Prop 65 plaintiffs.  BPA is present in a wide range of consumer products as well as food packaging, so all retailers should take notice.  While the emergency regulations are temporary (they expire in 180 days), OEHHA may undertake adoption of permanent regulations, opening another opportunity for public review and comment.  And, even if OEHHA succeeds in establishing a MADL in six months,  businesses will have precious little time to complete an analysis of the various factors to determine if the BPA in their product creates an exposure that requires a warning.

The clock is ticking…