California Finalizes Proposition 65 Rule Regarding Point-Of- Sale Warnings for Bisphenol A (BPA)

Date: Dec 09, 2016

On December 2, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) finalized its regulation regarding point-of-sale (POS) warnings for foods and beverages packaged in cans or with lids or caps that can cause exposures to bisphenol A (BPA). POS warnings will be permitted for such foods and beverages until December 30, 2017. After that date, manufacturers will need to provide warnings pursuant to the more general clear and reasonable warning provisions of the regulations, unless OEHHA further extends the expiration date for use of POS warnings.

To rely on the signage as a safe harbor, however, OEHHA is requiring that manufacturers submit information to OEHHA by the end of the year for inclusion in an online database of products. OEHHA specifies that the database is intended to cover products where BPA is intentionally used in the can, lid, or cap, but declined to set a limit below which BPA would be considered to be present unintentionally. The POS signage will not apply to products with cans, lids, or caps containing BPA if they are not listed in the database.Additional details are summarized below.

Until December 31, 2017, OEHHA will permit POS signage in retail stores that states:

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.           

Manufacturers whose cans, lids, and caps contain intentionally added BPA will only enjoy the benefits of this signage as a safe harbor, however, if they provide the following information to OEHHA for inclusion on their online database that will include for each food:

  1. The product brand name
  2. A product description, including the federal Food and Drug Administration product category for the food or beverage
  3. The Universal Product Code(UPC) or other specific identifying designation and
  4. If BPA is no longer used in the manufacture of the product packaging but is still available for sale or in inventory, the last expiration or “use by” date for the product where bisphenol A was intentionally used in the can, lid, or cap.  

OEHHA has launched an online reporting portal, through which manufacturers may provide this information to OEHHA.  The online portal form requires manufacturers to upload a file with the information requested from OEHHA; in this regard, OEHHA also has provided an Excel template for organizing the information.  If businesses do not use the online portal, they can send the necessary information (in txt, pdf, xls, xlsx, ods, xml, csv, tsv, tab, or fods format) to P65.BPA@oehha.ca.gov. OEHHA has stated in its December 8, 2016 Q&A on New Reporting Requirements for Businesses Using the Point of Sale Safe Harbor Warning for BPA Exposures from Canned and Bottled Foods that it is “encouraging businesses to provide their data prior to December 30, 2016.”