California's Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA), the agency that oversees implementation of California's Proposition 65 (more formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986), announced on February 11, 2010, that it is considering adding bisphenol-A (BPA) to the Proposition 65 list of chemicals causing reproductive toxicity. 

In response to a petition from the Natural Resources Defense Council, OEHHA has determined that BPA "appears to meet the criteria for listing" under what is known as the "authoritative bodies" mechanism, based on the findings of the National Toxicology Program's Center for the Evaluation of Risks to Human Reproduction (NTP).  In 2008, the NTP published a report on BPA concluding that the chemical causes developmental toxicity at high levels of exposure. 

OEHHA is now soliciting public comments as to whether BPA meets the regulatory criteria for listing.  Click here to view the OEHHA notice.  Comments are due to OEHHA by April 13, 2010. 

In July 2009, the Proposition 65 Developmental and Reproductive Toxicant Identification Committee voted not to list BPA under what is known as the "qualified expert" listing mechanism.  However, there is more than one mechanism for listing a chemical and OEHHA is now assessing whether the NTP findings require that BPA be listed under the separate "authoritative bodies" mechanism.

If BPA is ultimately added to the list as a reproductive toxicant pursuant to Proposition 65, that will have a significant impact on companies that use BPA in their products or packaging, including companies not located in California whose products are sold in  California, as many companies that have previously run afoul of Proposition 65 and its private enforcement mechanism can attest. 

Because many applications of BPA are for the purpose of ensuring food safety, reformulation may present its own risks that must be carefully considered.  Companies that use BPA, or who rely upon suppliers who use BPA, should therefore carefully evaluate the regulatory criteria for listing, and submit comments to OEHHA prior to April 13, 2010. 

If OEHHA determines that BPA does meet the regulatory criteria for listing, there will be a second opportunity for comments, but it is important to weigh in at this stage, particularly since OEHHA has already determined that BPA "appears" to meet the criteria for listing.

For more information, please contact John Epperson or Sandra Edwards, or your Farella Braun + Martel LLP attorney.