BPA Emergency Regulation

The state Office of Environmental Health Hazard Assessment (OEHHA) added bisphenol A (BPA) to the Proposition 65 list as a female reproductive toxicant on May 11, 2015. The BPA listing went into effect on May 11, 2016. The same day, OEHHA adopted an “emergency regulation” to allow temporary use of a standard “safe harbor” point-of-sale warning message for BPA exposures from canned and bottled foods and beverages, which often have a long shelf life of more than two years. This was done to avoid a wave of litigation over BPA exposures in canned foods and beverages, and for suppliers and retailers to provide consistent warnings to consumers through posted signs in retail locations.

The emergency warning regulation, which after OEHHA issued an extension, was in effect until December 31, 2017, provided as follows:

• BPA Safe Harbor Warning Content
  “WARNING: Many foods 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.
• BPA Safe Harbor Warning Method
  The warning must be provided by the retailer at each point of sale (i.e., where customers pay for foods and beverages, such as the cash register or checkout line). The warning must be no smaller than 5 by 5 inches. For products sold over the internet, the warning must be prominently displayed to the purchaser either on the product display page or otherwise on a webpage prior to completing the purchase.
• Allocation of Responsibility
  Similar to the general Proposition 65 warning regulations, the manufacturer, producer, packager, importer or distributor of the canned and bottled food or beverage may either:
  1) affix a label to the product bearing a warning; or
  2) provide written notice directly to the retailer seller or an authorized agent stating that the product may cause exposure to BPA and providing a product description and warning materials for the retail seller to use to satisfy the safe harbor requirement.