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  • The first NOV involving register receipts was issued by the Center for Environmental Health against a restaurant in Lake Forest 
  • California retailers appear to have two options: post warning signs in the store or switch to electronic receipts or BPA-free paper

Since May 11, 2016, consumer products sold in California that contain the chemical bisphenol A (BPA) require a Proposition 65 Warning Notice at the point of sale or on the products themselves. An exemption applies to products that might release BPA in trace amounts below the regulatory “Safe Harbor” levels.

While the initial focus in the press and among regulators has been on food containers lined with BPA-based epoxy resin (for which special emergency regulations have been introduced) and on consumer products made with BPA-based polycarbonate plastic, such as sunglasses, the first items to be targeted with 60-day Notices of Violation by the Proposition 65 bounty hunters are register receipts made from BPA-containing thermal receipt paper — not exactly items that would immediately spring to mind in the context of consumer products. The first such NOV has recently been issued by the Center for Environmental Health against a Del Taco restaurant in Lake Forest and what appears to be a small grocery business, Grewal Superfoods, in Pleasanton.
 
The BPA developer used in thermal receipt paper is unlike the BPA-based polymer in epoxy can linings and polycarbonate plastic: it is present as the free chemical, and not as a trace contaminant left over from the manufacturing process or a byproduct released if the epoxy or plastic ages under certain conditions. This means that measurable amounts of BPA are more likely to be transferred to the hands of a customer or employee after handling a register receipt than after handling a consumer product made of polycarbonate plastic or epoxy resin. 
 
California has established a very low safe harbor level of 3 micrograms of BPA per day for exposure through the skin. Interestingly, the NOV has raised the additional scenario of oral exposure that could result from transferring BPA from the hands to the mouth, but the state is nowhere close to establishing a safe harbor level for such oral exposure. For this reason, there seem to be two main alternatives available for a California retailer that currently uses BPA-based thermal receipt paper and wants to avoid being served with a Proposition 65 NOV: either post warning signs in the store, or switch to electronic receipts or BPA-free paper.
 
Given the ubiquitous nature of point-of-sale receipts made from thermal paper, resolution of this issue may become a lengthy process, and the NOV issued against Del Taco may be just the first of many involving retailers with California operations.

Arent Fox will continue to follow and report on developments involving California Prop 65. Please contact Robert G. Edwards, Ph.D.Debra Albin-RileyGeorgia C. RavitzJames R. RavitzBrian P. Waldman or Lynn R. Fiorentino for further assistance.