BPA Requirements Requiring Immediate Action: November 30, 2017
NEW requirements from the Office of Environmental Health and Hazard (OEHHA) require immediate action to ensure your brewery is in compliance and has “safe harbor” by December 31, 2017. Please read the details below on new BPA warning signs that need to be displayed in your tasting room AND an online portal you need to update to cover your beer sold at retail accounts.
This regulation does not apply to you if:
- You employ 9 or fewer employees.
- You only sell beer in containers that do not contain BPA. (In addition to cans, some bottle crowns and growler lids also contain BPA. Check with your supplier.)
- You have switched to BPANI containers and all products out in the marketplace are packaged in BPANI containers.
Background on BPA Warning Signs
Beer manufacturers selling products in California have been responsible to provide consumers with a “clear and reasonable” warning if Bisphenol-A (BPA) is present in their cans, bottles, crowns or growlers. The warning provided must also give consumers a means to identify which products have or do not have BPA. These requirements exist for your company until all your products in commerce (on-sale and off-sale) are packaged in certified 100% BPA Non-Intent (BPANI) containers. A company with nine or less employees is exempt from Prop 65 requirements.
Safe Harbor Emergency Regulations Set to Expire December 30, 2017
California’s existing safe-harbor regulations that created the current method of BPA warnings to consumers, including signage at Point-of-Sale (POS) and an actively maintained website list of “BPA products,” expire on December 30, 2017. New regulations that take effect December 31 require any supplier with products that are packaged in containers with BPA to provide appropriate warning signs to all retailers that carry those brands.
The CCBA is working with the Brewers Association and the Beer Institute on your behalf to help you continue to provide a “clear and reasonable warning” to consumers after December 30. This will include the development of a new consumer product database and the distribution of new BPA warning signs to all 90,000+ licensed retailers in the State of California. Once the sign is delivered, it is the retailers’ responsibility to post and maintain the sign. These new signs will be posted at both point-of-display (POD) and point-of-sale (POS) and in conjunction with the product database should provide a “clear and reasonable warning” to consumers about BPA.
WHAT YOU NEED TO DO BEFORE DECEMBER 30, 2017
All beer manufacturers that sell products in containers that are not 100% BPANI must list those brands on a database. UPLOAD INFORMATION HERE. The following fields must be entered:
- Brand Name: Your brewery name as listed on your label
- Product Description: Beer
- Size: Container size and type (12 oz can)
- Product Category: Alcoholic Beverage
- Universal Product Code: The UPC code on the individual container. If none, write none.
- Use by Date: The date in which this specific product will be in BPANI container. If unknown, leave blank. If you do not use consumer friendly date codes, leave blank.
To help ensure compliance, you must upload all products that may contain BPA. Please upload as soon as possible and no later than December 30, 2017. After that date, a new link will be provided to upload new products.
WHAT YOU NEED TO DO AT YOUR TASTING ROOM BEFORE DECEMBER 30
All beer manufacturers that sell beer through their tasting room in packaging that contains BPA (including most cans, some growler lids and some bottle lids) must hang a BPA-warning sign at EVERY point-of-sale station where packaged beer is purchased – including growlers – AND every point-of-display (separate fridge or shelf accessible to consumers displaying packaged beer). This will be required until all your containers are in BPANI packaging.
DOWNLOAD SIGNS BELOW:
Make Sure You Are Working Towards BPANI Products ASAP
The transition to BPANI containers in California is happening slowly and may not be complete until mid-2018 or later. Manufacturers are taking appropriate care to ensure the BPA replacements they offer do not suffer from integrity issues or impact food/beverage flavors, etc. CCBA encourages you to contact your supplier to make the transition to 100% BPANI containers ASAP.
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.
Questions? Call the CCBA Office: 916-228-4260.