Nearly a year after adding bisphenol A (BPA) to the state’s list of chemicals requiring warning labels, the California Office of Environmental Health Hazard Assessment took a step back from that requirement last week, passing an emergency action that requires makers of canned and bottled goods to provide retailers with generic warning signs about BPA exposure from canned food and beverages, to be displayed at check-out counters, as well as a list with names and descriptions of products that carry a risk of BPA exposure
“Our proposed emergency regulations are designed to allow for a smooth transition for warnings for BPA. We are concerned that a confusing array of warnings could appear in the absence of the proposal. The proposal would allow the temporary use of a standard point-of-sale warning message for BPA exposures from canned and bottled foods and beverages,” says Julian Leichty, a special assistant at OEHHA, via email.
But the move puzzled advocates on both sides of the BPA debate. BPA opponents complained that the warnings fell short of providing adequate disclosure. And many in the food industry protested that the use of BPA in food packaging is deemed safe by the U.S. Food and Drug Administration (FDA) and expressed concerns that the blanket warnings could deter consumers from purchasing nutritional, affordable canned foods.
Competing fears, confusing result
Traditionally, any product that contains a chemical on California’s Proposition 65 list — a roster of chemicals deemed to potentially cause cancer, birth defects or reproductive harm — must carry a warning label explaining the risks, unless the amount of the chemical in question does not pose a significant risk. Many assumed that the same rules were set to apply to any cans or bottles that contain BPA on May 11, 2016, one year after BPA was added to the Prop 65 list. Instead, manufacturers will be required to notify grocers and provide them with signs, which grocers will then be required to display at checkout. No individual product labels will be required.
The OEHHA provided a handful of justifications for its emergency action. Because canned and bottled goods can have a shelf-life of up to three years, grocers are likely to be carrying inventory they procured before labeling requirements, and that inventory could be on shelves for several years. Further, the Grocery Manufacturers Association estimates that 100,000 products would require signage, leading the OEHHA to worry that grocers’ labeling would be inconsistent and confusing. The organization was also worried that grocers — fearing lawsuits over labeling mistakes — would simply remove canned and bottled goods from their shelves altogether, or that labeling would make customers anxious about buying canned and bottled goods.
The latter two concerns are particularly a problem in low-income communities and food deserts — areas where fresh food isn’t widely available. There, canned goods are almost always the most affordable and often the only available form of fruits and vegetables. A Michigan State University study found that canned green beans, for example, cost only $0.67 per edible cup, compared to $3.23 per edible cup of fresh green beans—and that the canned beans were more nutritious. “The popular media at this point seem to point out that it has to be fresh. And that is just really not the case,” says study co-author Steven R. Miller, a professor at MSU’s Center for Economic Analysis.
The OEHHA emergency action states that “Widespread Proposition 65 warning signs throughout supermarkets where canned and bottled foods and beverages are sold could also cause some Californians to forego consumption of healthy and nutritionally important vegetable and fruit products.” The OEHHA hopes that a single warning sign at the point of sale won’t discourage people from purchasing canned goods — though it is unclear what other purpose the sign might have. In a statement for the North American Metal Packaging Alliance, the industry association that operates Can Science, Executive Director Kathleen Roberts said “NAMPA continues strenuously to oppose the listing of BPA under Proposition 65. The listing is not scientifically justified and thus is legally inappropriate.”
NAMPA and other opponents have objected to BPA’s inclusion on the Prop 65 list since the chemical was added in May 2015. The FDA and the European Food Safety Authority, among many other international bodies, have repeatedly ruled that BPA is safe for food packaging. In a surprising move, the FDA weighed in on the California matter by submitting a letter to OEHHA stating that “The results from the large extent of reproductive, sperm, and hormone parameters evaluated in the [FDA’s National Center for Toxicological Research] study do not support BPA as a reproductive toxicant.” In response to Can Science’s request for comment, an FDA spokesperson noted, via email, that “California’s Proposition 65 is a labeling law which requires label warnings when particular substances are present at certain levels in food, even if those levels are consistent with FDA safety standards.”
The emergency action was necessitated in part by OEHHA’s failure to set an oral maximum allowable dose level (MADL). If OEHHA had set an MADL, manufacturers and retailers would know which products had been deemed to pose a risk and therefore required a label. But the agency failed to reach a decision on the MADL, declaring that its “scientists found that the issue was technically complex.”