Proposition 65 Updates

A recent emergency regulation by California’s Office of Environmental Health Hazard Assessment (OEHHA) has added a Proposition 65 warning option for BPA (bisphenol A). This regulation applies to canned or bottled food and beverage sold at retail.

Many of our clients may be receiving these BPA warning signs from their vendors and wondering whether or not this emergency regulation applies to their business. This regulation is mainly focused on manufacturers and retailers and according to the OEHHA, restaurants are compliant so long as they are displaying their current Prop 65 signage.

“Restaurants that are posting the Restaurant Safe Harbor should continue to post that warning. Moreover, if a restaurant is not already posting that safe harbor, it should do so as soon as possible given its broad application to any listed chemicals sold or served at restaurants — including BPA — and the protection against Proposition 65 litigation that it is intended to provide.“

The current Prop 65 warning language (“Restaurant Safe Harbor”) is as follows:

WARNING: Chemicals known to the State of California to cause cancer or birth defects or other reproductive harm may be present in foods or beverages sold or served here.

The above language also applies to quick service concepts, out of caution it reminds any QSR concepts to add the new BPA regulation to their Prop 65 signage.

It is possible that a plaintiff could try to argue that pre-packaged canned food and beverages (such as cans of soda) sold at restaurants are not intended for immediate consumption if they can be carried off the premises, such that the Restaurant Safe Harbor does not apply to BPA exposures from those types of products.

We believe that argument, while colorable, would not prevail. A restaurant with a seating area that offers packaged foods and beverages is arguably intending for the product to be consumed at the restaurant, not for it be consumed off the premises. By contrast, a grocery store or similar retail establishment does not intend for products to be consumed on the premises. There may be gray areas, and it would be safest, of course, to post both signs.

As for restaurants that also operate other types of retail operations (such as a cafe restaurant inside of a grocery store), they should consider posting the BPA warning for the retail side of the business, while posting a separate Prop 65 sign for the restaurant side of the business.

For those who need to post the BPA warning, it needs to be posted at each point of sale and the sign must be no smaller than 5 x 5 inches. It must be displayed with such conspicuousness, as compared with other words, statements, designs, or devices at the point-of-sale, as to render it likely to be read and understood by an ordinary individual prior to the purchase of the affected products.

A point of sale is defined as the area within a retail facility where customers pay for foods and beverages, such as the cash register or check-out line where the warning sign is likely to be seen and understood prior to the consumer purchasing the canned or bottled food or beverage.

Obviously, this emergency regulation will have different applications for varying concepts and legal counsel should be consulted due to the fact that you may face liability under Proposition 65; as it places an independent obligation on every business in the chain of distribution to comply with the warning requirement.