Litigation

Proposition 65 and Bisphenol A: They're Back Again

By Bruce Nye

Bisphenol A ("BPA") is a hardener used in plastics, and it's in all kinds of hard plastic containers, including baby bottles.    Industry and environmentalists have been at each others' throats over this chemical for quite some time.  You can get a small flavor of the battle here at what appears to be an industry-supported site:  Bisphenol-a.org,  the National Institutes for Health's National Institute of Environmental Health Sciences site on the subject here, and, on the slightly more alarmist side, the green perspective at Bisphenolafree.org and the calmly, thoughtfully named "OurStolenFuture.org" here. 

As CBL described last summer here and here, OEHHA (the lead agency under Proposition 65) presented a 300+ page magnum opus on BPA to the Developmental and Reproductive Toxicity ("DART") identification committee, seeking to have the chemical listed as a reproductive / developmental toxicant under Propostion 65's "state's experts" mechanism.  The DART Committee said no, at least not now.

But don't underestimate OEHHA's tenacity.  At about the same time the DART committee was considering BPA, the Natural Resources Defense Council petitioned OEHAA to list  the chemical under the "authoritative bodies" mechanism of Proposition 65.  Under that mechanism, chemicals are listed if an "authoritative body" (and the "authoritative bodies" are listed by regulation) finds that the chemical is a carcinogen or reproductive toxin.

So last month, OEHHA proposed listing BPA under the "authoritative bodies" mechanism, based on the fact that, in 2008, the National Toxicology Program published a report finding "that the chemical causes developmental toxicity at high levels of exposure."  According to this announcement from OEHHA, there's a written comment period open until May 13, and there will be a hearing in Sacramento on the morning of April 20.  

CBL predicted last July that listing of BPA  was a done deal.  And it looks like DART's decision then not to list the chemical was just a bump in the road.  The only bases for contesting a listing under the "authoritative bodies" mechanism are that the evidence considered by the authoritative body was insufficient, or that "scientifically valid data that were not considered by the authoritative body clearly establish that the sufficiency of evidence criteria were not met."

Good luck with either of those.  This time it probably is a done deal.  The listing will require reformulation or a warning starting twelve months after the listing becomes effective unless a company using the chemical can establish the "No Observable Effect Level" defense, which is very tough. This will probably end the use of BPA in California for hardening food and beverage containers, as few companies want a warning on their food and beverage containers that the products cause birth defects.

Full post as published by CalBizLit on March 23, 2010 (boomark / email).