California voters in 1986 passed the initiative numbered Proposition 65, the Safe Drinking Water and Toxic Enforcement Act (“Prop 65”). Under Prop 65, the first sign required of suppliers who sell beverage alcohol at California retailers reads, “WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.” This signage program has largely been coordinated by the Beer Institute for many years through the California Signs Management Company.
Food & Drug Administration reviewed the safety of Bisphenol-A (BPA) and human health within the last decade and found that it was an issue for those with small body weights like infants drinking from formula bottles containing BPA, but that it passes out of the system so quickly for others that it was not considered a health concern. Nevertheless two years ago the California Office of Environmental Health Hazard Assessment (OEHHA) required that notification be given to customers related to presence of BPA in packaging products and their contents.
After many decades of use, BPA is considered ubiquitous in the environment; a truly BPA-free item may not exist. BPA is primarily known to exist in can liners for food items, and it may also be present in bottle crowns. Most paper receipts at retailer check out also contain BPA. The new OEHHA regulatory requirement also affects food manufacturers who package in cans. The best-case scenario for packaging manufacturers and brewers is the adoption of so-called “BPA non-intent” or BPA-NI, where no BPA is added to the packaging (but might be present in minute quantities).
The transition to BPA-NI options has been very slow, with manufacturers working diligently on liner physical and sensory performance and food safety considerations. Brewers Association staff understands that two major can manufacturers now have BPA-NI cans and can ends in production, and these are available at a different price than previous can technology. If you sell beer in California, you should consider moving packaging to BPA non-intent. Brewers who sell beer in California who decide to go this route should specify BPA-NI liner technology when ordering cans and ends from their packaging supplier to ensure that their packaging meets the current standard of care. Different packaging supplier plants may be at different levels of capability in terms of first or second generation BPA-NI technology. A second generation of BPA-NI technology appears to reduce flavor and aroma scalping that may have been an issue with early prototypes.
Alright, back to OEHHA’s recent declarations for BPA. In 2016, OEHHA passed an emergency regulation that allowed signage for stores that sell BPA containing packaging and a safe harbor website for companies to list as part of the signage program. The Brewers Association participated in the signage program and database on behalf of our members to be a part of this safe harbor to avoid potential Prop 65 lawsuits. That emergency regulation comes to an end on December 30, 2017, despite the best communication efforts by California Craft Brewers Association Executive Director Tom McCormick, Beer Institute General Counsel Mary Jane Saunders, and the Grocery Manufacturers Association on behalf of food suppliers.
While we hope that the signage program will be authorized to continue as an authorized safe harbor from legal challenges for Brewers Association members, that is not guaranteed as of this date. If a deal cannot be reached with OEHHA or the governor’s office, each individual package sold in California may need a new warning label or each stock keeping unit could need its own sign. Signage has worked to date for compliance, and we hope that a solution that isn’t overly burdensome to beverage alcohol or foods industries can be worked through as logic suggests it should.
Keep your ears on. This issue could move quickly, in dramatic or subtle fashion, and in a manner that isn’t very clear and may be very expensive.