In this news article, Recent Proposition 65: Actions on BPA Affecting Canned and Bottled Beverages and Food, is brought to you by lexology.com.
Recent action by the California Office of Environmental Health Hazard Assessment (OEHHA) regarding BPA exposures will impact manufacturers, packagers, importers, distributors, and retailers of canned and bottled beverage and food products. The recent actions are:
- An emergency rulemaking that allows manufacturers, packagers, importers, and distributors of canned and bottled beverage and food products to comply with the Proposition 65 warning requirements that become effective May 11, 2016 through providing point-of-sale warnings to retailers and allows retailers to use specific point-of-sale warnings.
- A notice of proposed rulemaking to set a Maximum Allowable Dose or safe harbor level for dermal exposure to BPA from solid materials.
Point-of-Sale Warnings for BPA Exposures from Canned and Bottled Food and Beverage Products
Why Emergency Action?
On May 11, 2015 OEHHA added BPA to the list of chemicals known to the State of California to cause reproductive toxicity, with the Proposition 65 warning requirements becoming effective 12 months later. Beginning May 11, 2016, a business exposing consumers to BPA consumer products, including foods, must provide a “clear and reasonable” warning on “labeling, shelf tags, shelf signs, menus or any combination thereof” unless the business can show that exposure is “1,000 times below the no observed effect level” for BPA.
The existing Prop 65 regulations did not explicitly allow for point-of-sale warnings. On April 1, 20161, OEHHA issued a Notice of Emergency Action to temporarily allow use of a standardized point-of-sale warning message for BPA exposures from canned and bottled beverages and food. In proposing the emergency regulations OEHHA specifically noted the possibility of inconsistency in labeling and consumer confusion that would arise given the lack of an OEHHA-established Maximum Allowable Dose Level (MADL) for oral exposure to BPA. The Office of Administrative Law approved the emergency regulations April 18.
The absence of a reference to a specific NOEL raises the likelihood of legal action based on a range of values including those accepted by the US Food and Drug Administration and the European Food Safety Authority and those espoused by activist groups, including litigation from private enforcers based on the most conservative NOEL values thus far discussed, unless Prop 65 warnings are provided. OEHHA is concerned that retailers, unsure of which food products require a BPA exposure warning, and wary of private enforcement actions, could potentially remove all canned and bottled beverage and food items from their shelves or place warnings throughout their stores in order to avoid a private enforcement action. OEHHA further believes that these actions could either reduce access to nutritious food products or cause consumers to avoid purchasing them due to confusion over an excessive number of warning signs. Therefore, OEHHA proposed the emergency regulations.
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