The food and beverage industry generally supports extending the use of point-of-sale (POS) signage to indicate exposures from bisphenol A (BPA) present in cans, lids, and caps of packaged food and beverages at retail stores; however, the industry strongly opposes the requirement that companies submit information on whether BPA was intentionally used in the manufacture of the can lining or jar or bottle seal so that this information may be posted on  California’s Office of Environmental Health Hazard Assessment (OEHHA) website.

• BPA was added to the Prop 65 list as a reproductive toxicant in May 2015, and on April 18, 2016, OEHHA implemented an emergency rulemaking that allowed the use of POS signage to indicate exposures from BPA present in cans, lids, and caps of packaged food and beverages at retails stores until October 17, 2016. As reported on this blog, OEHHA issued a proposed rule on July 22, 2016, that would permit the POS signage for BPA until December 30, 2017. However, the proposal would require manufacturers, producers, packagers, importers, or distributors of foods where BPA is intentionally added to their packaging to send OEHHA specific information about the products to post on the “lead agency website” (in addition to sending similar information to retailers).

• Comments on the proposal submitted jointly by the American Beverage Association, the Beer Institute, the Distilled Spirits Council, and the Wine Institute, supported adopting the current safe harbor warning for BPA in food as a non-emergency safe harbor warning until such time as OEHHA adopts a Maximum Allowable Dose Level (MADL) for BPA by the oral route of exposure. Conversely, the beverage associations opposed conditioning the availability of the BPA warning safe harbor upon a company’s submission of information concerning whether BPA “was intentionally used in the manufacture of the can lining or jar or bottle seals,” stating that approach would be misleading to consumers since, “[t]he presence of BPA in a food depends on much more than whether BPA has been intentionally used in the manufacture of the lining or seal.”

• The Grocery Manufacturers Association (GMA) also submitted comments supporting the proposed extension of the signage program, while opposing the requirement that each manufacturer of food or beverage products provide information to OEHHA concerning those “products for which a warning is being provided” and” in which BPA was intentionally used in the manufacture of the can lining or jar or bottle seals.” Explaining, GMA stated, “…there is no rational relationship between the statute’s requirement that manufacturers warn consumers about exposures to listed chemicals above threshold levels and OEHHA’s requirement that manufacturers provide it with a list of food and beverage products in whose packaging BPA is used.” GMA also urged OEHHA to “develop an appropriate MADL for the ingestion route of exposure that is based on a review of the studies of sufficient quality,” adding “[w]ithout a published MADL for ingestion exposures to BPA, manufacturers and retailers using BPA will face unnecessary litigation risk if they do not either provide warnings or take the risks and incur the expense entailed in reformulation of their products.”

• While the POS signage would provide a safe harbor warning for BPA in food and beverage products for 18 months, companies still must consider the risk of enforcement action if they do not provide some type of warning or eliminate BPA from food packaging, in the absence of a MADL for oral exposure.