California Will Use List of Products Containing BPA to Inform Consumers Through 2017

The California Office of Environmental Health Hazard Assessment (OEHAA) has created a new list at https://www.p65warnings.ca.gov/bpalist to provide the public information regarding whether bisphenol A (BPA) was intentionally added in the manufacture of a can, bottle cap or seal for a particular food or beverage product. BPA is a chemical listed under Proposition 65 as causing harm to the female reproductive system. OEHAA intends for consumers to use this list as a guide in making their purchasing decisions. The list of products is available on the OEHAA website (https://www.p65warnings.ca.gov/bpalist).

The BPA Prop 65 Warning Emergency Regulation

Prop 65 requires companies doing business in California to provide a warning when they knowingly and intentionally cause an exposure to a listed chemical known to the state to cause cancer or reproductive harm.  Effective May 11, 2016, companies that manufacture or sell products that expose consumers to BPA are required to provide Prop 65 warnings unless they can affirmatively show that their product does not pose a significant risk of reproductive harm to consumers. 

Some canned and bottled food products covered by the Proposition 65 warning for BPA provide the required warning by posting information at checkout stands in retail stores throughout California. Others are adding warning labels to the products that comply with the new Proposition 65 safe harbor language. Until the end of 2017, all products that contain intentionally-added BPA and require a Proposition 65 warning will also be included on the OEHAA list. California chemical lawyers consider this to be a “belt and suspenders” approach to ensure that consumers have reliable and up-to-date information to use in their purchasing decisions.

The “List” Is Date Driven

Because some products are phasing out the use of intentionally added BPA, OEHAA recognized the list could eventually include a product that no longer contains BPA. This could be confusing and misleading to the consumer. OEHAA will update the list periodically throughout the year of 2017 to reflect when a product no longer contains BPA.

OEHAA also recognized that many products may remain on the shelf that pre-date the phase-out of BPA for such product. Consumers need to know if the specific product unit that they may purchase contains intentionally added BPA. It is foreseeable that a consumer could purchase an older product containing BPA, despite the manufacturer of such product making the decision to phase out BPA in that product line. This conundrum was resolved by OEHAA by incorporating a “use-by” or “best-by” date.  Our California environmental lawyer identified this particular provision as critical for consumers to have the most reliable information.

Some businesses are discontinuing the use of BPA in their cans, bottle caps or jar seals.  For those businesses’ products, the list on the OEHAA site will include a “use-by” date. The “use-by” date on the product will indicate the date that BPA was last used in the packaging.  Products with a “use-by” or “best-buy” date stamped on that product post-dating the “use-by” date on the OEHAA list no longer contain intentionally used BPA. 

Use List With Caution: The BPA Products List May Be Misleading

If relying on the OEHAA list for purchasing decisions, it is important to check the “use-by” date to determine if a product on the list still contains BPA. This can be confusing for unwary consumers relying on the OEHAA list. The purpose of the warning provision in Proposition 65 is to provide consumers information about potential exposures to chemicals that may cause cancer or reproductive toxicity. For the information to be useful for consumers’ buying decisions, it must be up to date. Importantly, the OEHAA list could mislead consumers into thinking a product contains BPA even though it does not, if the consumer does not cross-check the “use-by” date on the list and on the product itself. OEHAA will update the list throughout the 2017 year.

The list is not all-encompassing and it is important for consumers to be aware that they need to look at all sources of possible warnings.  For example, some products may have a warning on a product label, or posted near the product; these products may not be on the OEHAA list.  

Proposition 65 requires businesses to provide warnings for exposures to listed chemicals. It does not require businesses to provide information about products where the chemical is not used. If a manufacturer has affirmatively proven that BPA that may be in the container does not migrate to the food or beverage, the warning may not be required. Our California toxics lawyer assists manufacturers with protocols for compliance with Proposition 65’s BPA regulations.

The OEHAA BPA List Is Only Good For 2017

The list and the checkout stand warnings will expire after December 30, 2017. After December 30, 2017, warnings will be required on product labels or on shelves near the products to identify those products that can cause exposures to BPA. The OEHAA list will not be a reliable source of information after December 30, 2017. Consumers are cautioned not to use the 2017 OEHAA list after the end of the year.

This regulation allows businesses to phase out or redesign products containing BPA before the end of the 2017, at which time specific labeling and/or warnings posted near the product at point of sale will be required. Businesses are concerned that consumers will continue to use the expired list after 2017. Businesses are also concerned that consumers will not cross-check the “use-by” date on the list with the “use-by” date on the product. Bottom line, OEHAA has created a program that could be confusing for consumers and could “over” warn where there is no exposure to BPA. There is a risk that a negative stigma will taint a product even after BPA is removed, if the product is on the 2017 list.

Intentionally Added Exclusion

Manufacturers of food and beverage containers that may contain trace levels of BPA due to contamination, which is not intentionally added to the container, are not required to provide Proposition 65 warnings for BPA. This is important for manufacturers because it is infeasible to affirmatively prove the absence of trace contaminants, and OEHAA agrees that trace levels of BPA will not cause exposure to consumers triggering the Proposition 65 requirements.

For help understanding or using the list please contact: P65.BPA@oehha.ca.gov. For other questions about Proposition 65 contact: P65.Questions@oehha.ca.gov, or (916) 445-6900.