California BPA Update December 5, 2017

If you currently or plan to sell beer in California, it is highly recommended that you register your beers on the California Office of Environmental Health Hazard Assessment (OEHHA) site before December 30, 2017. On that date, OEHHA will stop maintaining that site, the Beer Institute, whose work in this area is led by Mary Jane Saunders, will make a mirror copy of the uploaded brand information so that beer drinkers have a “clear and responsible” warning that Bisphenol-A (BPA) may be present in cans (bodies or lids) or bottle crowns.

That recommendation again:  Upload Your Brand Information Here!

To avoid signage or brand listing requirements for beer sold in California, all beer packaging in market must be BPA non-intent (BPANI). Other alternatives are to label each package with BPA liners with the California warning label or provide labels for each stock keeping unit. The registry does seem like the best option. The Brewers Association, Grocery Manufacturers Association and others will continue the signage program for retailers.

If you have not contacted your packaging suppliers for BPANI options, it may be a good time to start that research. I hear that “generation 2” substitutes have met some brewer flavor and aroma standards, and that “generation 3” substitutes are in the works and may be coming to market soon if not there already.

California Craft Brewers Association (CCBA) Executive Director Tom McCormick posted a list of common questions and answers in his recent update to the state association membership. If you brew in California, please join the CCBA. Tom and his staff are crucial watchdogs on Proposition 65 issues and his engagement has saved member companies significant exposure to expensive Proposition 65 lawsuits. Tom is a champion for brewers, and received the F.X. Matt Defense of the Industry Award several years ago.

BPA Frequently Asked Questions

  • How do I know if my beer contains BPA?
    • BPA is not a chemical in beer liquid but is a chemical used in the production of rubber and plastic materials. BPA is found in the liner of cans and can lids.. Some bottle crowns and growlers lids also have a material that includes BPA. You should check with your supplier to see if any of your packaging contains BPA. The industry is moving towards a new material called BPANI.  The industry goal is to have all beer containers  in BPANI packaging  by the end of 2018.
  • What is a BPANI container?
    • BPA Non-intent (BPANI) is a new material developed by the can manufacturing industry to replace BPA which was recently listed by the State of California as a Proposition 65 contaminant. The BPANI material does not contain any BPA in the manufacturing of the material. The industry is moving towards BPANI in all cans, can lids, crown seals and growlers screw caps. Some suppliers have already switched over to  BPANI packaging . Because packages with BPANI conform with Prop 65, there is no warning required. Check with your suppliers to see if and when they will switch to BPANI Packaging.
  • Do I need to comply with this regulation if I only sell bottled beer in the marketplace?
    • This ONLY applies to products that contain BPA, which is found in some bottle lids. Contact your supplier for clarity on your packaging and ask for written documentation that the bottle crowns and growler lids are BPA-free or BPANI.
  • What if I only sell growlers out of my tasting room?
    • BPA is found in some growler lids. Contact your supplier to clarify and ask for written documentation.
  • Once all of my products are in BPANI containers, can I stop listing products on the database?
    • As long as a product that contains BPA is still in the marketplace, you will need to have that product listed on the database. If you release a new product in a BPANI container and it has never been sold in a BPA container, then you would not need to list that product. Only products that contain BPA that still may be in the marketplace need to be listed
  • Are part time staff counted in the “9 or less employees” that would make our brewery exempt from these requirements?
    • OEHHA applies a liberal definition to “employee” that includes anyone on your brewery payroll regardless of hours worked. Part time staff should be included in the “9 or less” count.
  • Do I need to have a point of sale sign for online purchases direct-to-consumer?
    • The BPA warning should be at every point of sale, so if you sell beer through your website, you should include the BPA warning somewhere in the eCommerce transaction.
  • Why should I care if I am in compliance by 2018?
    • Because penalties up to $2,500/day per violation could apply if your company is found in non-compliance.
  • Who enforces Proposition 65?
    • The California Attorney General’s Office (link is external) enforces Proposition 65. Any district attorney or city attorney (for cities whose population exceeds 750,000) may also enforce Proposition 65. In addition, any individual acting in the public interest may enforce Proposition 65 by filing a lawsuit against a business alleged to be in violation of this law. Lawsuits have been filed by the Attorney General’s Office, district attorneys, consumer advocacy groups, and private citizens and law firms. Penalties for violating Proposition 65 by failing to provide notices can be as high as $2,500 per violation per day.
  • Why can’t I place the warning directly on my packaging?
    • That is up to you, but the TTB may not approve a state-specific warning on beer labels. Other states may not approve a California warning for their state. Lastly, putting a warning on your label will not cover any of your products that may still be in the marketplace, which do not contain a warning on the label.

Paul Gatza is the director of the Brewers Association (BA), a not-for-profit trade association whose purpose is to promote and protect American craft brewers and American craft beer and the community of brewing enthusiasts. Paul is a member of the association’s Brewpubs, Technical, Communications, Market Development, PR & Marketing and Government Affairs Committees. Paul’s origin in the beer community started when he took up homebrewing in 1990. He worked on the bottling line at Boulder Beer and would sneak over to the brewhouse when opportunity allowed. He owned a pair of homebrew supply shops in Boulder and Longmont, Colorado from 1994 to 1998. He served as director of the American Homebrewers Association for 7 years and is in his 17th year as Brewers Association director. Paul is ranked as a National Beer Judge by the Beer Judge Certification Program. Paul is also a former judge director of both the Great American Beer Festival and World Beer Cup, before moving to the judge panels for these elite competitions.

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