Marketers of consumer products, including foods, beverages, dietary supplements, OTC drugs, and cosmetics, should be evaluating their products, including product packaging, for the presence of bisphenol A (BPA) without delay. On May 12, 2016, the one-year grace period permitted by California's Office of Environmental Health Hazard Assessment (OEHHA) ends, and companies whose products expose California consumers to BPA must provide a Proposition 65 (Prop 65) reproductive toxicity warning to those consumers.
Importantly, California has not yet established a maximum allowable dose level (MADL) (i.e., a safe harbor level) for BPA, so a product that exposes consumers to any amount of BPA will be required to carry a warning for reproductive toxicity in females unless the company marketing the product has established an MADL in compliance with California regulations. As a reminder, Proposition 65 requires "clear and reasonable" warnings prior to exposure.
While a number of companies have already moved away from the use of BPA in food product packaging, the chemical still appears to be widely used in the coatings on the inside of many food and beverage cans. BPA is also used in the production of polycarbonate plastic. In that regard, some, but not all, plastics that are marked with the resin identification code 7 may be made with BPA.
For newly listed chemicals, it is common to see a flood of notices of violation and subsequent lawsuits at the end of the twelve-month grace period. Accordingly, it is very important to ensure compliance by May 12, 2016 if your products expose California consumers to any amount of BPA.
If you have questions concerning compliance with this mandatory requirement, please contact one of the authors.