On April 18, 2016, the California Office of Environmental Health Hazard Assessment adopted Proposition 65 emergency regulations governing safe harbor warnings for bisphenol A (BPA) in canned and bottled foods and beverages. The emergency regulations, which pertain only to canned and bottled foods and beverages (and no other products) went into effect immediately upon OEHHA’s adoption.
GLO previously reported on OEHHA’s emergency regulations. In short, the regulations specify how manufacturers, producers, packagers, importers and distributors of canned and bottled foods and beverages may discharge their obligation to provide warnings for exposures to BPA in those products. To take advantage of the protection afforded by Proposition 65 safe harbor warnings, such entities must either affix a Proposition 65 warning to the products’ labels, or must provide a written notice to the retailer meeting the following requirements:
- The notice must state that the canned or bottled food or beverage may result in an exposure to BPA;
- The notice must include the name or description of the canned or bottled foods or beverages subject to the warning; and
- The notice must provide, or offer to provide, a sufficient number of point-of-sale warnings satisfying the regulations’ requirements as to size, conspicuousness, and warning message.
If the retailer receives such a notice, it is obligated to place and maintain warning signs meeting the regulations’ requirements. The warning signs must be no smaller than 5×5 inches and placed at each “point of sale,” which is defined as the area within a retail facility where customers pay for foods and beverages, such as the cash register or checkout line, and electronic checkout functions on internet websites. Reflecting OEHHA’s preference for warnings provided prior to purchase (versus prior to exposure, which is what Proposition 65 actually requires), the regulations require the signs to be “displayed with such conspicuousness as to render it likely to be read and understood by an ordinary individual prior to purchase” of the product.
The warning message is specific to BPA as follows:
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.
Significantly, the emergency regulations also contains an opportunity for retailers to correct the failure to warn, if it the absence of the warning sign:
- Is not the result of intentional neglect or disregard for the regulations’ requirements;
- Is not avoidable using normal and customary quality control or maintenance; and
- Is corrected within 24 hours of discovery or notification.
It remains to be seen how this opportunity to cure will be implemented in practice, for each of the three criteria presents issues of fact that may be disputed in an enforcement action.
The emergency regulations will assist this affected portion of the regulated community to comply with Proposition 65, and will allow businesses to provide a uniform message to California consumers about this listed chemical. For their part, California consumers can expect to be inundated with these BPA warnings everywhere that canned and bottled foods and beverages are sold — an ironic consequence, given OEHHA’s longstanding goal of promulgating regulations to help reduce, not increase, the overall number of warnings flooding the California marketplace.