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California Proposition 65 WARNING for exposure to Bisphenol A (BPA) from canned and bottled foods and beverages, is supposed to be on products that contain BPA. What about products that do not contain BPA?

I realize there is an issue of liability, and that labeling isn't necessarily to eliminate consumer confusion regarding products with BPA.

Compare these 2 products from Target: Lindt Chocolates which are wrapped in a plastic, which could contain BPA; and M&Ms which are sold in a cardboard box, that AFAIK does not contain BPA.

Let's assume the M&Ms and its container do not contain BPA.

Is it unlawful to provide the warning for BPA in a consumable product that doesn't contain BPA?

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    FYI, the warning ( p65warnings.ca.gov/sites/default/files/downloads/chemicals/…) doesn't say that this product definitely has BPA in it. – user3851 Jul 1 '16 at 17:11
  • Are you sure the cardboard box isn't lined in plastic? Most are, as noted in the warning itself. – phoog Jul 1 '16 at 17:14
  • For simplicity, lets pretend the cardboard box doesnt have plastic lining, or is BPA free plastic. – j0h Jul 1 '16 at 20:11
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The warning that you link to is completely compliant with the law, in fact it is verbatim the warning that the state mandates. The regulations pertaining to warnings can be found here. Health and Safety Code 25249.6 states that

No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.

The burden is legally on the business to establish whether a substance is contained in a product – the state does not inform businesses "Your product has X, you must label it" (they, or a plaintiff's attorney, will inform you that you have violated the law). 25249.10(c): "In any action brought to enforce Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant".

The regulations do not contain any provisions which forbid such warnings, thus providing a warning is legally prudent if it is possible that a regulated substance can be detected in the product. Since litigation is expensive (over a half a million was claimed by plaintiff's side in the below case), courts would not penalize a business for being overly-cautious. In Consumer Defense Group v. Rental Housing Industry, the issue was that apartment buildings had parking lots, which lacked the mandated warnings regarding carcinogenic substances in a parking lot; also, tenants were allowed to smoke in their units, and there were no warning signs. Since microscopic BPA particles might be present in the packaging (stuff gets in the air during manufacturing), a warning is legally prudent, not to mention allowed.

[Addendum]

Suciu et al 2013 "Recycled paper–paperboard for food contact materials: Contaminants suspected and migration into foods and food simulant" studies contaminants in recycled paper and paperboard, and find "BPA was the only substance present in all the samples". The probability that M&M boxes contains some recycled cardboard is very high.

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  • This is the examplar compliant warning that the government gives: p65warnings.ca.gov/sites/default/files/downloads/chemicals/… – user3851 Jul 1 '16 at 17:10
  • So, assuming there is no marginal production cost to printing warnings, a rational business would apply as many warnings as possible to its products, even if they are completely inapplicable? – feetwet Jul 2 '16 at 1:13
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    The risk is, if competitors don't do likewise, your product could be at a marketing disadvantage, since many people might think "Oh no, they're putting poison in Brand X Candy, so I better switch to Brand Y which doesn't have the warnings and therefore must be safer!". Also, you'd need a really big box to fit all of the warnings. – user6726 Jul 2 '16 at 1:36

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