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Paul Zimmerman
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Be Warned: Prop 65 Emergency Regulation on BPA Takes Effect

A new Proposition 65 requirement takes effect today, May 11, 2016. It requires all California hotel and lodging businesses with 10 or more employees to display a warning for all canned and bottled foods and beverages offered for retail sale that may contain Bisphenol A (BPA). BPA is still commonly used in the packaging of food and beverage items sold by retailers throughout California. It is most often found in the interior lining of metal-based food and beverage containers, as well as lids for glass jars and bottles. Companies that sell canned and bottled food or beverages – whether in a sundry or through catering services – are required to post the Prop 65 warning.  

What products require the BPA warning?

The BPA warning must be posted anywhere that canned and bottled foods and beverages are offered for retail sale. As stated by The Office of Health Hazard Assessment (OEHHA), the warning applies to all "foods and beverages packaged in hermetically sealed, durable metal or glass containers; including, but not limited to those containing fruits, vegetables, soups, pasta products, milk, soda, and alcoholic beverages.”

Where should the warning be posted?

A retailer must provide the BPA warning at every "point of sale." "Point-of-sale" means the cash register or check-out line area, or surrounding area where customers pay for food and beverages. Note that a vending machine and an electronic check-out web page are each considered a “point of sale.”

The BPA warning must be "displayed with such conspicuousness, as compared with other words, statements, designs, or devices at the point-of-sale, as to render it likely to be read and understood by an ordinary individual prior to purchase of the affected products."

What should the warning say?

The BPA warning must include the following:

-          The word "WARNING" in all capital letters and bold print,

-          The words "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 warning sign should be no smaller than 5 x 5 inches.

Notably, manufacturers and others in the chain of distribution must "provide, or offer to provide, to the retail seller, at no cost, a sufficient number of the required point-of-sale warning signs ...." Therefore, many retailers will look up the supply chain for guidance in this regard.

In its Notice of Emergency Action, OEHHA explained the rationale for its proposal “to promulgate an emergency regulation to allow temporary use of a standard point-of sale warning message for BPA exposures from canned and bottled foods and beverages.” Because OEHHA has not yet determined a Maximum Allowable Dose Level (“MADL”) for oral exposure to BPA and does not expect its research regarding this issue to be completed until next year at the earliest, OEHHA wanted to ensure that businesses would not “take inconsistent approaches to compliance” during the intervening period. The emergency regulation will expire on October 18th, unless OEHHA seeks to re-enact the measure – which is likely.

In the meantime, retailers that sell canned and bottled food and beverages will need to be vigilant in ensuring that they are in compliance with this emergency action. Prop 65 provides for enforcement by the California attorney general, and also allows private citizens to file lawsuits seeking to enforce labeling and warning regulations; this should be incentive enough to maintain compliance.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.