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 ingestion.
The Grocery Manufacturers of America (GMA) is asking retailers to continue to post the point-of-sale warnings, or point-of-display warnings that member manufacturers will be providing. GMA’s request indicates that many manufacturers have not found alternatives to using BPA in can linings, jar lids and bottle caps. Manufacturers have reported to OEHHA more than 23,000 food and beverage products containing BPA, available in a searchable database at https://www.p65warnings.ca.gov/bpalist
In response to anticipated legal challenges, GMA is expected to argue that OEHHA’s approval of the point-of-sale warning for the past 18 months implies the warning is clear and reasonable.
There is no guarantee, however, that continued use of the point-of-sale warnings, or even the point-of-display warnings provided by GMA members, will hold up to legal challenge.
Retailers should ensure that their vendor agreements include clear defense and indemnity provisions covering any Prop. 65 claims, and carefully consider and discuss with counsel whether and how to provide warnings for BPA.