California BPA Update: Register Your Beers Now

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If you sell bottled or canned beer in California in which any part of the package contains bisphenol A (BPA), such as a can liner or crown liner, there is a new reporting requirement that provides a greater level of safe harbor. Below is text excerpted from Mary Jane Saunders of the Beer Institute with edits to fit our needs. California Craft Brewers Association President Tom McCormick has contacted OEHHA and confirms that OEHHA has an implementation date of January 1, 2017.

For 2017, while the BPA warning language for signage won’t change, the existing sign distribution program, coordinated by the Beer Institute with financial participation by the Brewers Association continues. OEHHA, the California regulatory agency in charge of Prop 65, is imposing a new requirement: an OEHHA-run database. More specifically, on December 8, OEHHA announced that to claim the existing warning as a safe harbor, producers must upload product information to a new OEHHA-run database. OEHHA wants each producer to provide the following information:

A list of all food products for which a warning is being provided in which bisphenol A was intentionally used in the manufacture of the can lining or jar or bottle seals. The food product must be identified by:

  1. Brand name;
  2. Product description, including the federal Food and Drug Administration product category for the food;

iii. Universal Product Code or where a UPC code is not available, other specific identifying designation; and

  1. Where bisphenol A is no longer used in the manufacture of the product packaging but the product is still available in commerce, the last expiration or “use by” date for the product where bisphenol A was intentionally used in the can linings or seals

OEHHA’s stated objective for the database is to allow consumers to search products before making purchasing decisions. OEHHA describes the database as a “simple tool,” but it took the agency until late last week to get the database upload tool ready. The upload tool has two fields, one for the UPC code and one for “other specific identifying information.” A company need not provide information in both fields. The UPC code would seem to be the best way to do this, but it could also be provided with some other designation. (The regulation uses the connector “or” as opposed to “and”.)

OEHHA’s announcement, information about the database, and the upload tool is available via the following link:

OEHHA’s December 8 announcement states that producers will need to populate the new database with product information by January 1, 2017 to claim safe harbor protection immediately. Failure to populate the database by this date does not make our current warning program null and void; it just means that there is no automatic safe harbor.

We encourage you to get your company’s product information uploaded to this OEHHA database. Unless it is easier to upload the UPC codes on the secondary packaging, we recommend that you populate the database with UPC codes on the primary packaging. One option is that you populate the database with all the company’s products, not just those currently sold in California, since you won’t have to keep track of changes as products are introduced in the state. As for product description, we believe “alcoholic beverage” is a reasonable product description.

Finally, there is no indication that OEHHA intends to establish a Maximum Allowable Dose Level (MADL) for BPA any time soon.

Paul Gatza Director Brewers Association

January 13, 2017

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