The California Proposition 65 (Prop 65)1 requires products that contain hazardous chemical(s) to have proper warning labels. However, manufacturers of products containing hazardous chemicals often fail to provide this warning label and are often sued by professional Prop 65 litigants or various non-governmental organisation (NGOs). Once settlements have been reached in these lawsuits, manufacturers are then required to reformulate their products to meet certain limits and/or to provide a warning label for their products.
At present, over 900 chemicals are listed and identified by the state of California as causing cause cancer, birth defects or other reproductive harm. The list2 must be updated at least once a year.
Bisphenol A (BPA) was added in the list of chemicals on 11 April 2013 as a chemical known to cause developmental toxicity, but delisted on 19 April 2013. After almost 2-years consultation, BPA was then added back3 in the list as a chemical known to cause female reproductive toxicity and effective since May 2016.
On 18 April 2016, the California’s Office of Environmental Health Assessment (OEHHA) published an emergency regulatory action4 allowing the canned and bottled food and beverage sellers an option to use a specific warning sign at each point-of-sale for oral exposures to BPA from these products. It is now replaced by the regular rulemaking5 with certain changes and remains in effect until 30 December 2017.OEHHA is also creating a searchable database for consumers to use to determine whether a product is packaged in a can or with a bottle cap or seal in which BPA was intentionally used.
On 17 June 2016, OEHHA adopted a Maximum Allowable Dose Level (MADL) of 3 micrograms/day6,7 for BPA from dermal exposure from solid materials and took effect since 1 October 2016. So far, there are still no settlements can be followed.
Two months later, OEHHA published significant amendments8 on general warning requirement that requires to use a mandatory symbol consisting of a black exclamation mark in a yellow triangle with a bold black outline for non-food exposure warning. The word “WARNING” must be displayed in all capital letters and bold print, the warning statement indicating that the product “can expose” individuals to listed chemicals rather than “contains”, and also the new requirement requires to include a URL to the OEHHA website. The new warning will become effective from 30 August 2018. Until then, businesses may use either the old warnings or the new ones.