California Designates BPA as Reproductive Toxicant Under Prop 65
On April 11, 2013, the State of California, through its Office of Environmental Health Hazard Assessment (OEHHA), officially designated Bisphenol A (BPA) as a chemical known to cause developmental and reproductive harm. Under Proposition 65, products containing chemicals known to the State of California to cause cancer, birth defects, or reproductive harm cannot be sold in California unless a health hazard warning is provided. Under state law, companies selling products containing BPA will have one year, or until April 12, 2014, to comply with the warning requirement of Proposition 65, or risk a public or private enforcement action leading to the imposition of civil penalties on violators of up to $2,500 per day, per violation.
BPA is used in a variety of common consumer products, such as some hard plastic water bottles, thermal paper such as sales receipts, epoxy resins used to line the insides of food cans, and even CDs and DVDs. According to OEHHA, however, BPA can interact with a number of systems in the body including those regulated by the female hormone, estrogen, and by thyroid hormones. BPA may cause problems in the developing fetus, and impact the developing brain and subsequent behavior. BPA exposure during pregnancy may also affect development of the breast and reproductive organs.
The American Chemistry Council has sued OEHHA in the California Superior Court for Sacramento County, seeking an injunction to prevent the designation of BPA as a reproductive toxin. The California Attorney General is representing OEHHA and has opposed the injunction. A hearing will be held on April 19, 2013.
Many countries outside the U.S. have already taken steps to prohibit BPA from use in products for children and infants. The European Union has prohibited BPA from baby bottles, and Canada declared BPA a toxic substance in 2010 and banned it from baby bottles and infant formula packaging. The U.S. Food and Drug Administration (FDA) bans BPA from baby bottles and sippy cups, and California previously enacted the Toxin-Free Infants and Toddlers Act, banning the sale or distribution of any food or beverage container designed for children age 3 or younger that contains detectable levels of BPA.
OEHHA has proposed a safe harbor level of 290 micrograms per day for BPA; exposures below that level will not require warnings. According to OEHHA, this safe harbor level is considered above the level most people would encounter in products. PlasticsNews reports that a group of 22 scientists is appealing to the state to set a lower safe harbor level of no higher than 50 micrograms per kilogram of body weight per day. The group includes Dr. Csaba Leranth of Yale University’s neurobiology and obstetrics, gynecology, and reproductive sciences departments, who is quoted as saying, “Even in very, very low values, [BPA] is harmful.”
The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.