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Public Comment Period Begins on OEHHA’s Revised Prop 65 BPA Emergency Regulations

The California Office of Administrative Law has published the California Office of Environmental Health Hazard Assessment’s revised emergency regulations on bisphenol A, which means that the public comment period for these regulations ends on April 13, 2016. Once finalized, these emergency regulations will establish the safe harbor method for providing Proposition 65 warnings for bisphenol A in canned and bottled foods and beverages.

GLO previously reported on OEHHA’s emergency regulations on bisphenol A (BPA). BPA was identified as a Proposition 65 reproductive toxicant on May 11, 2015, meaning that the warning requirement becomes effective on May 11, 2016.  This substance is used in a number of applications, including the manufacture of epoxy resins used as linings for cans and bottles.  These linings extend the shelf life of food and beverages packaged in cans and bottles and protect them from microbial contamination.

Given the ubiquitous presence of canned and bottled foods and beverages available for purchase and consumption, and the aggressive climate of private Proposition 65 enforcement, OEHHA drafted these emergency regulations so that manufacturers, suppliers and retailers of these products are given clearer compliance guidance in advance of May 11, 2016.

On April 1, 2016, OEHHA published its revised BPA emergency regulations. The revised regulations largely mirror OEHHA’s earlier version released in March 2016, but:  (1) revise the language of the warning text; (2) for those manufacturers and suppliers seeking the protection of these regulations, require these entities to provide warning materials to retailers; and (3) clarify retailers’ opportunities to cure minor deviations from the regulations.

The revised warning text reads 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.

The warnings must be provided at the retailer point of sale on signs no smaller than 5 X 5 inches. Manufacturers and suppliers of canned and bottled foods and beverages may discharge their own warning obligations by transmitting a notification in compliance with the regulations and providing retailers with warning materials.

For entities that produce, manufacture, supply and retail these products, the emergency regulations provide clearer Proposition 65 compliance guidance. And the consuming public will receive the benefit of a uniform Proposition 65 message no matter where they shop. The effect of that uniform messaging on consumers’ buying practices remain to be seen.

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.