In our post last week, we outlined the terms of the first two published Proposition 65 BPA settlements, for polycarbonate drinkware. We explained that we don’t know if these settlement terms would become a standard for future settlements and compliance because of the nature of the settlements – out-of-court, with the same plaintiff and Proposition 65 plaintiffs firm. After some consideration, it’s our belief that these settlements will not be particularly useful in guiding companies who seek to avoid Proposition 65 warnings for polycarbonate, whether in drinkware or other products.

The settlements require either reformulation to 1,000 parts per million or a Proposition 65 warning. At first blush, this 1,000 ppm limit might look like a reformulation standard. But upon further review, the settlements may be better understood as an option to warn or cease selling polycarbonate drinkware in California. This is because BPA is the primary ingredient in polycarbonate and the monomer remains after the reaction with phosgene. Therefore, it’s not a matter of just setting polycarbonate specs with less BPA, and one cannot manufacture polycarbonate without BPA.

As a result, the 1,000 ppm limit here seems borrowed from the phthalates settlement limits, which were based on a California statute that itself borrowed the 1,000 ppm standard from EU regulation. The EU regulation was itself based on a determination that chemicals present under 1,000 ppm are contaminants not intentionally added to products, and that phthalates present at that level were not likely to cause significant risk of harm.

These settlements would have been of far more interest had they either:

  • limited the amount of BPA migration from polycarbonate,
  • addressed directly the amount of BPA in polycarbonate that required a warning for ingestion (with no MADL having been set by OEHHA), or
  • set contaminant levels of BPA in any hard plastic used to make the drinkware at issue in the notices, whether made from polycarbonate or otherwise.

They do not give us any information to handicap what amount of BPA in polycarbonate will ultimately be deemed to fall under the safe harbor MADL for dermal exposure of 3 μg/day. As written, these settlements seem to simply say: if you make drinkware out of polycarbonate, provide a Proposition 65 warning. We will continue to track the various BPA cases to see if future settlements address these issues.