California Proposition 65 Reformulation of BPA in Consumer Products
Two new Prop 65 settlement agreements involving BPA in thermal paper and cell phone cases have been reached. The parties in these settlements agreed to reformulate BPA in these products. The settlement for cell phone cases also allows the use of a Prop 65 warning as an alternative.
SAFEGUARDS | Hardgoods NO. 094/18
California Proposition 65 (Prop 65 ) is the ‘Safe Drinking Water and Toxic Enforcement Act of 1986’, a ballot initiative passed overwhelmingly by California residents in November 1986. It requires the state to publish a list of chemicals  that are known to cause cancer, birth defects or reproductive harm. The list was first published in 1987 and has evolved to more than 860 chemicals.
In Prop 65, one important provision for companies doing business in California is to provide a clear and reasonable warning before knowingly and intentionally exposing anyone to a listed chemical. Once a chemical is listed, businesses have 12 months to comply with this requirement. It is important to note that the new and revised language for a clear and reasonable warning  will become effective on August 30, 2018.
Businesses with less than 10 employees and government agencies are exempt from this provision. Businesses are also exempt if the exposures create no significant risk of cancer, birth defects or other reproductive harm.
Bisphenol A (BPA, CAS 80-05-7) has been on the Prop 65 list of chemicals since May 2015, as a chemical known to cause female reproductive toxicity . Since May 2016, enforcement actions against businesses that fail to warn consumers about exposure to BPA have resulted in a number of settlements for thermal paper, and food contact products such as polycarbonate dishware . The reformulation for BPA in the latter settlement agreement has since been amended from ‘no more than 1000 ppm’ to ‘BPA-free’, and no changes to the option to provide a Prop 65 warning.
Since April 2018, two new settlement agreements involving BPA in thermal paper and cell phone cases have been reached. The parties in the former settlement agreed to a reformulation of ‘< 10 ppm BPA’, a concentration value that is strengthened two-fold from the concentration value reported in SGS Safeguards number 190/17 . The settlement agreement for BPA in cell phone cases has opened a new category of products for which parties have been agreed to reformulate.
Highlights of these two new settlement agreements are summarized in Table 1.
|Item||Scope||Reformulation for BPA/Warning|
|1||Cell phone cases||≤ 3.0 ppm otherwise warning|
|2||Thermal paper||< 10.0 ppm|
A Prop 65 settlement is a consent agreement between the parties named in the settlement and a party not named in a settlement is not bound by that settlement.
While businesses not named in Prop 65 settlements are not legally bound by the agreement, due to the unique nature of Prop 65, it is advisable for companies doing business in California to use settlement reformulation limits as a reference to avoid possible future litigation.
Throughout a global network of laboratories, SGS can offer comprehensive testing, product assessments and consultancy services related to California Proposition 65 to assist your risk management in your supply chain for consumer goods such as DIYs, electrical and electronics, hardgoods products, juvenile products, and textile & toy products. For further information, please visit our website.
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