Legal Update

Proposition 65 warnings are now required for products containing BPS sold in California. BPS is one of several organic compounds known as bisphenols, which are chemical substances used in the production of plastics.

Today, BPS can be found in a variety of common manufactured goods. It is often used in thermal paper, including receipts, tickets, shipping labels, clothing tags, magazines, and other paper products. Consumer goods such as plastic food and beverage containers, microwave-safe dishes, baby bottles, and textiles may contain BPS. Additionally, BPS may be used in industrial coatings, linings for metal cans and pipes, and heat-resistant machinery equipment.

California's Proposition 65

Under California's Proposition 65, products containing certain chemicals known to the state of California to cause cancer, birth defects, or reproductive harm require a clear and reasonable warning of potential harm. As of December 29, 2024, producers and packagers of products containing BPS are obligated to provide the required warnings. Retailers of products containing BPS are only obligated to provide warnings if the retailer is responsible for introducing a listed chemical into a product.

Businesses that produce or package products for sale in California should assess whether those products contain BPS by testing and/or reviewing product formulations, materials, and exposure levels and adjusting product labels and/or formulas accordingly to comply with Proposition 65.

Failure To Comply with Proposition 65

California's Environmental Protection Agency's Office of Environmental Health Hazard Assessment has not established a safe harbor level for BPS, meaning businesses should assume that any detectable amount of BPS in a product without the required warnings under Proposition 65 could be a violation.

Failure to provide required warnings of BPS or other chemicals listed in Proposition 65 may result in civil penalties of up to $2,500 per violation. Any company that threatens to violate the notice requirements may be enjoined.

Other Proposed Restrictions on BPS

In addition to Proposition 65, California expanded a health and safety regulation that previously placed restrictions and replacement guidelines on BPA to apply to all forms of bisphenol, including BPS.

California is currently the only state that has enacted a restriction on BPS. However, restrictions have been considered in several jurisdictions, including New York, New Jersey, and Michigan. Businesses should remain aware of the changing landscape of BPS regulation.

For more information about how these regulatory developments may affect your business, please contact Bob Alpert or Jeff Douglass.