Initial Proposition 65 BPA Enforcement Focuses on Thermal Receipt Paper

六月 16, 2016

Shortly after the expiration of the one year non-enforcement period,1 the first 60-day notice of intent to sue for exposure to Bisphenol A (“BPA”) was issued by private enforcer, Center for Environmental Health (“CEH”).  The noticed product was thermal receipt paper commonly used to produce credit card receipts without the use of ink.  Parties receiving the notice include Del Taco Restaurants, Inc., Del Taco LLC, and Grewal Superfoods, Inc.  The notice claims that exposure to BPA can occur from handling the thermal receipt paper, and alleges both dermal exposure and ingestion via hand-to-mouth contact.  OEHHA has proposed a safe harbor level for dermal exposure of 3 µg/day; however, there is currently no established or proposed safe harbor level for oral exposure.

We expect additional 60-day notices of intent to sue will be issued in the coming months for other BPA-containing products sold without proper warnings.  An emergency regulation2 adopted by OEHHA gave food and beverage sellers the option to use point-of-sale warning signs (as opposed to the more common, on-product warnings) for BPA-lined canned and bottled food items.  However, no similar option was given to manufacturers or sellers of other BPA-containing products, including certain eyeglass and sunglass frames, plastic food storage containers and wrappers, plastic plates and dinnerware, and non-stick cookware, among other items.  Many California sellers of BPA-containing products have had to pull such items from store shelves or apply Proposition 65warnings to products at the store level.

We will issue further alerts as new information develops in this and other Proposition 65 enforcement matters.

1 The California Office of Environmental Health Hazard Assessment (“OEHHA”) placed BPA on the list of Proposition 65 chemicals as a reproductive toxin on May 11, 2015. 

2 This emergency regulation expires after 180 days.  During that period, OEHHA intends to commence a regular rulemaking process to further address BPA issues.

3 “Proposition 65” is the name commonly given to the California Safe Drinking Water and Toxic Enforcement Act of 1986.

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