December 8, 2017
Authored by: Bryan Cave, Merrit Jones and Tom Lee
The California Proposition 65 regulation allowing a point-of-sale warning for bisphenol-A (BPA) in food and beverage products expires on December 30, 2017. After that date, retailers and manufacturers likely cannot rely on the point-of-sale warning, and may have to rely instead on product label or shelf warnings, or reformulation of food containers without BPA.
California’s Office of Environmental Health Hazard Assessment (OEHHA) has refused to extend the regulation, on grounds that manufacturers have had sufficient time to phase out use of BPA. OEHHA’s refusal has been appealed to the California Environmental Protection Agency and the Governor’s Office, but is likely to stand.
Therefore, after December 30th, retailers could be held liable for the sale of products containing BPA unless a Proposition 65 compliant warning is provided. While the safe harbor level for dermal exposure to BPA is less than 3 micrograms per day, there is no safe harbor threshold for