Despite positive reviews from the EPA and European Food Safety Authority, Bisphenol A (BPA), a synthetic compound used to line canned goods and other consumer products, was added to the Proposition 65 list on May 11, 2015, as a chemical known to cause reproductive toxicity. Effective May 11, 2016, private enforcers may bring lawsuits to force warnings on products for exposures to BPA. No warning is required if a company can show that the exposure is below the regulatory safe harbor, also known as the Maximum Allowable Dose Level (MADL), but this defense is difficult in practice because the law places the burden on defendants to demonstrate de minimis exposure, whereas private enforcers need only show the presence of BPA in a product to bring a lawsuit.
In response to the listing, several industry groups met with the California Office of Environmental Health Hazard Assessment (OEHHA) regarding the potential negative impacts the listing would have on businesses and consumers, especially if the listing was enforced absent the adoption of a safe harbor MADL for BPA. Brushing aside these concerns, OEHHA will allow enforcement of the listing.
*Not admitted to the practice of law.