On January 6, 2017, the California Office of Environmental Health Hazard Assessment notified the public that its Proposition 65 bisphenol (BPA) database is now accessible. This follows the agency’s recent adoption of revisions to the BPA safe harbor warning regulation, effective January 1, 2017, which now require manufacturers to notify OEHHA if their food and/or beverage cans and bottles contain BPA.
BPA was listed in May 2015 as a female reproductive toxicant under Proposition 65. BPA is used in many applications, including in the liners of cans and bottles of foods and beverages to keep those products fresh and to avoid microbial contamination. Understanding the wide impact of the Proposition 65 listing, OEHHA promulgated a specific safe harbor warning regulation for BPA in the food and beverage application. To benefit from the safe harbor, manufacturers must notify retailers of those canned and bottled foods and beverages that require a Proposition warning, and retailers must provide the warnings as specified in the regulation.
On November 30, 2016, OEHHA adopted revisions to the BPA safe harbor warning regulation. The revisions keep the fundamental structure of the original BPA warning regulation, with some important additions.
The revisions to the BPA safe harbor warning regulation
The revised regulation maintains the requirement that manufacturers notify retailers of the products for which warnings are required. However, a new provision now requires that the notification sent to the retailers include the products’ specific brand names and UPC code. To the extent that prior notifications, under the prior version of the regulation, did not include that information, manufacturers should re-send the notification with the additional brand name information.
Significantly, the revisions also reflect OEHHA’s recently articulated position that Proposition 65 authorizes the agency to impose data call-in requirements on the regulated community. Under the revised regulation, manufacturers notifying retailers of the need to provide Proposition 65 warnings for canned and bottled foods and beverages also must provide OEHHA with a list of all food products for which a warning is being provided, in which BPA was intentionally used in the manufacture of the can lining or jar or bottle seals. The food product must be identified by:
o Brand name;
o Product description, including the federal Food and Drug Administration product category for the food;
o Universal Product Code or other specific identifying designation; and
o Where BPA is no longer used in the manufacture of the product packaging but the product is still available in commerce, the last expiration or “use by” date for the product where BPA was intentionally used in the can linings or seals.
The information was required to be submitted to OEHHA by January 1, 2017. OEHHA recently published guidance on how to submit the required information.
The new database is intended, as OEHHA states on its website, to provide “a simple way for the public to determine whether bisphenol A (BPA) was intentionally used in the manufacture of a can, bottle cap or seal for a particular food or beverage product…. Consumers interested in reducing their exposures to BPA can use this list as a guide in making their purchasing decisions.” No doubt consumers will do just that. With that kind of consumer pressure, retailers likely will press their suppliers to stop using BPA in the food and beverage application – an endeavor that will be technologically challenging as effective substitutes continue to be explored.
From an enforcement perspective, the new database also may provide a roadmap for enforcers wishing to ascertain which products are protected by the safe harbor warning. Those products not identified in the OEHHA database could be considered fair game for enforcement.
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