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Prop 65 OEEHA Notices Public Hearing on Prop 65 BPA Regulations

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August 15, 2016

The Office of Environmental Health Hazard Assessment (OEEHA)

Notices Public Hearing on Prop 65 BPA Regulations

 Lee N. Smith

Perkins Mann & Everett

On May 11, 2015, bisphenol A (BPA) was added to the Proposition 65 list of chemicals as a chemical known to cause reproductive toxicity in females.  BPA is a chemical used in the manufacturing of polycarbonate plastic and epoxy resins.  These resins are frequently used in the manufacturing of the protective linings on the inside of food and drinks cans as well as lids for glass bottles and jars.   It is present in a wide number of plastic products the use of which, such as baby bottles, have already been banned by the FDA. The inclusion of BPA to the Proposition 65 list is of great concern to a wide variety of food producers due to the frequently in which BPA products are used to seal existing products.

Mandatory warnings for exposure to BPA came into effect on the one year anniversary, May 11, 2016, of the listing unless the person causing the exposure could prove that an exposure of 1,000 times the level in question had no observable effect.  Because canned and bottled foods have a long shelf life many products manufactured before BPA was listed are still in the market.  This resulted in an OEHHA emergency regulation which allows temporary use of a generic point-of-sale warning message for BPA exposures for foods until warnings can be placed on new product or manufacturers no longer use BPA in the lining.

The emergency regulation will sunset on October 17, 2016 unless reenacted. OEHHA is proposing a regular rulemaking process to establish a continuance of this emergency regulation until December 2017. This proposal purportedly takes into account comments received on the emergency regulation.  A public hearing is scheduled for September 12, 2016 at 10:00 a.m. in the Sierra Hearing Room at the CalEPA Headquarters building 1001 I Street in Sacramento. (http://oehha.ca.gov/proposition-65/crnr/notice-proposed-rulemaking-and-announcement-public-hearing-amendment-section)

If you are interested in what products may contain BPA there is a recently developed public searchable database of products containing bisphenol A (BPA) was created by the Environmental Working Group (EWG). (http://www.ewg.org/research/bpa-bombshell) The database lists around 16,000 products that are commonly sold in grocery stores and other retailers. (http://www.ewg.org/)