BPA Regulations Under Prop 65 Expire in 2018

The temporary regulations that gave companies a break for Bisphenol A, or BPA, under Prop 65 warning requirements expired Dec. 30, 2017.

BPA was listed as known to cause reproductive toxicity under California’s Proposition 65 in May 2015. Food and beverage manufacturers often used BPA in linings of containers and starting in May 2016, companies that used BPA were required to warn consumers about the chemical in their product.

Use of BPA was so ubiquitous, however, that when the warning requirement came into effect, a state agency issued a regulation allowing trade associations to provide general warnings about categories of products containing the chemical at cash registers to remain compliant with Prop 65.

The current warning indicates “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: https://www.p65warnings.ca.gov/chemicals/bisphenol-bpa.”

Companies were provided additional time to allow them to find food and beverage containers that do not contain BPA under the interim Prop 65 regulation for the chemical. Alternatively, starting in 2018, companies must provide a justification for why use of BPA in their products is “clear and reasonable” if they continue to use BPA.

In 2018, companies that opt to warn consumers about the BPA content of their product will need to include a warning either on the label or on the shelf or near the product indicating “WARNING: This product contains chemicals known to the State of California to cause birth defects or other reproductive harm.”

The rules will become even tighter for companies starting in August 2018, when those who want to use BPA in their packaging will be required to have additional information on their labeling or on product shelves.

Companies who do not turn to BPA-free packaging or find some way to explain why use of the chemical is necessary under Prop 65 could face enforcement actions by consumers concerned about exposure.

Under Prop 65, consumers who successfully bring a lawsuit against companies that include harmful chemicals in their products without warning consumers can be awarded up to 25 percent of the penalties issued, along with attorney’s fees.

Prop 65 and BPA

The State of California has warned consumers about Bisphenol-A (BPA) for several years. Recent studies have shown that even small amounts of the chemical can affect the genetic makeup of offspring. BPA is listed as known to cause reproductive toxicity.

Prop 65 requires companies to warn consumers when chemicals in their products are known to be dangerous. Additionally, California law mandates that the state keep a list of chemicals hazardous to human health, including those known to cause cancer, birth defects, or reproductive harm.

If a concerned individual or interest group identifies a product that contains a Prop 65 listed chemical and the company has not provided consumers adequate warning, they can hold companies accountable under the law.

Companies need to be provided notice and an opportunity to either provide warning or reduce or eliminate the use of the chemical. Under Prop 65, notice must be sent to the California State Attorney General.

Filing a claim under Prop 65 is complex. The experienced attorneys at Bradley/Grombacher can help.