Judge Orders BPA Removed From Prop 65 Toxic Chemical List For Now

Posted: 04/19/2013  browse the blog archive

A Sacramento County judge granted a preliminary injunction today in favor of the American Chemistry Council (ACC) in their case against California’s Office of Environmental Health Hazard Assessment (OEHHA).  The injunction requires that OEHHA remove the chemical Bisphenol A (BPA) from California’s Prop 65 list of chemicals known to cause reproductive harm, effective immediately, until the case is heard at trial this summer.  Under Proposition 65, companies offering products for sale in California that contain chemicals known to the state to cause cancer, birth defects, or reproductive harm must first provide consumers with a health hazard warning.

BPA is used in a variety of common consumer products, such as hard plastic water bottles, thermal paper such as sales receipts, epoxy resins used to line the interiors of food cans, and even CDs and DVDs.  OEHHA designated BPA as a reproductive toxicant on April 11, 2013, after finding that 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.

However, the judge found, among other things, that there has been no definitive statement that BPA is a developmental toxicant and could adversely affect development.  The judge also found that designating BPA as a reproductive toxicant will create irreparable consumer misperceptions regarding the potential health impacts of BPA-made products and will cause widespread and irreversible consumer deselection of products.

The judge granted the injunction on the grounds that plaintiff, ACC, has a reasonable possibility of prevailing at trial, and that irreparable injury will occur if the injunction is denied.

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.