California Retailers Now Required to Post BPA Warning Signs

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Retailers in California will be soon be required to inform customers of potential exposure to Bisphenol A (BPA), a structural component in many food and beverage packages that has been said to increase the risk of cancer and interfere with normal reproduction.

Beginning May 11, companies that manufacture, import or distribute food and beverage products in California will be required to provide a warning about exposure to BPA, which last year was added to the state’s Proposition 65 list of chemicals known to cause cancer, birth defects or other reproductive harm.

On behalf of all brewers, and in an effort to inform retailers of the new regulation, The Beer Institute, together with a number of food and beverage trade groups, including the Brewers Association, this week sent 87,000 first class delivery notices to California retailers advising them of the changes.

The jointly-funded six-figure snail mail effort was coordinated in response to a California Office of Environmental Health Hazard Assessment (OEHHA) emergency regulation warning, issued last week, that requires retailers to post 5×5 inch BPA warning signs at point-of-sale or checkout counters, according to the Beer Institute.

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Mary Jane Saunders

“Every brewer should be protected in some form or another,” Beer Institute vice president and general counsel Mary Jane Saunders told Brewbound.

Retailers were mailed information about the new regulations, a copy of the warning (text below), and instructions for how to obtain free warning signs by visiting www.prop65signmanagement.com, Saunders said.

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: www.P65Warnings.ca.gov/BPA.

Though it has already proposed a maximum allowable dose level (MADL) for dermal (skin) exposure to BPA, the California agency has yet to determine an MADL for oral exposure to the chemical, which prompted the use of warning signs, Saunders said.

“Unfortunately, there is currently no MADL for oral exposure from food and beverages to BPA,” the agency wrote in its ruling. “OEHHA is waiting for research sponsored by the federal government that may resolve complicated scientific questions that would enable OEHHA to establish a MADL for BPA oral exposures. The research is expected to be completed in late 2017 or early 2018.”

Communication from the Beer Institute, on behalf of U.S. brewers and importers, is intended to “protect” all companies required to issue warning statements, Saunders said. Product manufacturers are “ultimately liable,” she added, noting that the participating trade associations are acting as agents to help food and beverage companies comply with the law.

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The new rules will impact all food and beverage manufacturers packaging in glass and metal packages, Saunders said, as linings and crowns can contain trace amounts of BPA.

For its part, research conducted by the U.S. Food and Drug Administration has found that BPA is “safe at the current levels occurring in foods.”

Information about BPA and the emergency rulemaking process can be found on the OEHHA website. Additional information regarding the new warning signage requirements is included in the Beer Institute’s note to members, reprinted below for your convenience.

Dear BI Member,

This is an update for members about an initiative the Beer Institute is handling on behalf of its members regarding a new warning for bisphenol A (BPA) required in California.

Proposition 65 (Prop 65) is a State ballot initiative intended to protect California citizens and the State’s drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm, and to inform citizens about exposures to such chemicals. The California Office of Environmental Health Hazard Assessment (“OEHHA”), a state agency, identifies and lists chemicals for which manufacturers, importers, distributors and retailers must warn. Alcohol has been on the Prop 65 list for decades. For alcoholic beverages, OEHHA requires this warning:

WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.

BPA is now listed as a female reproductive toxicant under Prop 65. BPA is a compound employed to make certain plastics and epoxy resins. It is commonly used in the protective linings of many food and beverage cans and container enclosures, such as jar lids and bottle caps, to avoid microbial contamination and extend shelf life. BPA has been used in food and beverage packaging and in other products for many decades.

Whether and to what extent BPA causes reproductive toxicity has been the subject of intense debate in the scientific and regulatory communities for several years. FDA’s current perspective, based on its most recent safety assessment, is that BPA is safe at the current levels occurring in foods and beverages. Nonetheless, as of May 11, 2016, anyone who manufacturers, imports or distributes in California a product containing BPA must provide a Prop 65 warning to consumers. This warning is in addition to the Prop 65 alcohol warning.

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Except for the alcohol warning, which is done by sign, manufacturers ordinarily put Prop 65 warnings on their products. For BPA, OEHHA will allow 5×5 warnings signs, which retailers must post at the point-of-sale or checkout counters (e.g., one at each cash register.) The following warning will cover fruits, vegetables, soups, pasta products, milk, soda, and alcoholic beverages packaged in hermetically sealed, durable metal or glass containers:

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: www.P65Warnings.ca.gov/BPA.

OEHHA requires manufacturers, importers and distributors to notify retailers, in writing, about the warning requirement. Retailers must be given (or offered) a sufficient number of point-of-sale warning signs to meet their needs. If the retailer receives a notice, placement and maintenance of warning signs becomes the retailer’s responsibility.

The Beer Institute, together with a number of other trade associations, will mail approximately 87,000 notices to California retailers this week. The notice will advise them that 5×5 warning signs are available for retailers to order, free of charge from www.prop65signmanagement.com. This is the same warning sign distribution model established by the alcohol industry for Prop 65 alcohol warning signs.

BI undertook this effort on behalf of all its members. No individual BI member will need to contribute money to the effort. We do, however, have to identify the companies and products for which we are providing the warning. All of the participating trade associations are working to create a database of companies and products. BI intends to identify all BI members, even those not currently selling in California, so that if and when a member enters the California market, they will be in compliance with the warning requirement. BI will provide a list of all its members with links to each member’s product listings on the member’s website(s). Some companies may prefer to have us disclose a separate list of products or brands sold in California.