California Considers Listing BPA Under Proposition 65

On July 15, 2009, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) received a petition from the Natural Resources Defense Council, asking OEHHA to initiate the process for listing bisphenol-A (BPA) as a reproductive toxicant under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). OEHHA is the California agency charged with implementing Proposition 65.

water bottleBPA is a chemical produced in large quantities for use primarily in the production of polycarbonate plastics and epoxy resins. BPA is found in many products, including food and drink packaging, such as water and infant bottles, compact discs, impact-resistant safety equipment, and medical devices. It is also used in the coatings of metal products, such as food cans, bottle tops, and water supply pipes. BPA is also present in some dental sealants and composites.

BPA is currently not listed under Proposition 65 as a substance known to the State of California to cause cancer or reproductive toxicity. One of the ways a chemical may be added to the Proposition 65 list is via the authoritative bodies mechanism established by Cal. Health & Safety Code section 25249.8. Under this mechanism, a chemical must be listed under the Proposition 65 regulations when OEHHA determines that two conditions are met:

(1) The evidence considered by the authoritative body meets the sufficiency criteria contained in the regulations; and (2) An authoritative body formally identifies the chemical as causing reproductive toxicity.

After an authoritative body has made a determination about a chemical, OEHHA evaluates whether listing under Proposition 65 is required. OEHHA has determined that BPA appears to meet the criteria for listing as a reproductive toxicant under Proposition 65, based on findings of the National Toxicology Program’s Center for the Evaluation of Risks to Human Reproduction (NTP-CERHR, 2008). A 2008 NTP-CERHR report concludes that BPA causes developmental toxicity at high levels of exposure, and OEHHA has concluded that the chemical appears to satisfy the authoritative bodies’ listing criteria in the Proposition 65 regulations.

If BPA is added to the list, Proposition 65’s warning and labeling requirements will apply to products containing BPA. Once a chemical is listed, businesses have 12 months to comply with the warning requirements. Proposition 65 also prohibits companies that do business within California from knowingly discharging listed chemicals into sources of drinking water. Once a chemical is listed, businesses have 20 months to comply with the discharge prohibition.

The OEHHA has requested public comment concerning whether BPA meets the criteria in the Proposition 65 regulations for authoritative body listings. After reviewing all of the comments OEHHA will determine whether BPA meets the regulatory criteria for listing. If listing proceeds, OEHHA will publish a Notice of Intent to List and provide an additional comment period. In order to be considered, comments must be received by OEHHA by 5:00 p.m. on Tuesday, April 13, 2010.

For more information or to submit a comment, see the OEHHA’s Request for Information.

Sarah Kerbeshian is an Associate in the Regulatory Affairs Department at Dorsey & Whitney, LLP. Please see our web site at

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