What is Bisphenol-A and Why Should Companies be Aware of It?

June 16, 2008

J. David Brittingham


Bisphenol-A, commonly known as BPA, is an industrial chemical compound used to make shatter-resistant polycarbonate plastic. This type of plastic has many applications including use in certain food and drink packaging and can be found in such items as baby bottles, water bottles, canned food, sports equipment, medical devices, CDs, and household electronics. BPA has been a recent subject of controversy in the news which could lead to possible litigation. Several studies have indicated that the chemical can leach from the plastic, into any liquid it contains, potentially causing adverse health effects. Almost all exposure to the chemical is through diet, and infants fed with liquid formula are among the most highly exposed. Infants who are fed canned formula from polycarbonate bottles can consume quantities of BPA which may potentially cause abnormal health effects such as changes in behavior and the brain, as well as reproductive development.

While BPA has earned FDA approval for consumer products that come into contact with food, a panel convened by the U.S. National Institute of Health determined that "some concern" exists about BPA's effects on fetal and infant brain development and behavior. A report issued April 15, 2008, by the U.S. National Toxicology Program (NTP), subsequently agreed with the panel concluding that there is "some concern for bisphenol A exposure in these populations based on effects in the prostate gland, mammary gland, and an earlier age for puberty in females."[1]

Critics of the studies maintain that BPA is safe and does not pose any serious danger to health. Among those critics is the American Chemistry Council (ACC), an industry trade association for American chemical companies, which has called on the FDA to review the chemical. The ACC also called the media coverage of the BPA controversy "unnecessarily confusing and frightening the public."[2] The Grocery Manufacturers Association also insists that BPA is safe, suggesting "data purporting to demonstrate 'low' dose effects on the male reproductive system by BPA have not been successfully replicated and, therefore, are not credible to estimate human health risks and safety in light of the weight of a large body of evidence to the contrary."

Governmental Response

Following the NTP report, Congressmen have introduced BPA legislation. U.S. Senator Charles Schumer introduced Senate Bill 2928 entitled "The BPA - Free Kids Act of 2008." The bill proposes to ban any consumer product that is designed or intended for use by children ages seven or younger that contains a detectible amount of BPA.[3] The proposed legislation further requires a study on the health effects of BPA exposure in all age groups and in pregnant women, and further permits state laws that provide equal or greater protection. A second bill, H.R. 6228 entitled "Ban Poisonous Additives Act of 2008" was introduced by Rep. Edward J. Markey to the House of Representatives. The bill would amend the Federal Food, Drug, and Cosmetic Act to prohibit the use of BPA in all food and beverage containers.[4]

In addition to the proposed legislation, Congress has been active in other areas regarding BPA. Congressman have sent letters to infant formula manufacturers asking them to voluntarily stop using BPA in infant formula packaging.[5] Congress is also investigating the Weinberg Group, a chemical industry consulting firm, for its role in downplaying the health effects of BPA and other chemicals. Furthermore, the Energy and Commerce Committee has initiated an investigation of the FDA's approval of BPA.[6]

BPA has been a focus of foreign governments as well. The Canadian government has been very active in regulating BPA, being the first country in the world to complete a risk assessment of BPA in consultation with industry and other stakeholders. The Canadian government has subsequently moved to ban polycarbonate infant bottles after it officially declared BPA as toxic.[7] The toxic designation will allow Canada to eventually ban the manufacture, import, or sale of baby bottles.

Recent Litigation/Industry Response

In the wake of growing concern regarding potential adverse heath effects of BPA, two recent lawsuits have surfaced. The first lawsuit arose in California where a woman filed a class action against Nalge Nunc International Corp., accusing them of suppressing key information about the potential health risks of its hard-plastic sports bottles containing BPA. The plaintiff contended that despite scientific findings regarding the risk of BPA, the corporation withheld and suppressed material information regarding the risks of BPA.[8] The corporation has since decided to phase out its line of polycarbonate containers citing low consumer demand.

A second similar lawsuit was brought by a group of Missouri parents against several manufacturers of plastic baby bottles and bottle liners alleging that the companies intentionally failed to disclose that their products contained BPA. Plaintiffs contend the defendants intentionally concealed and failed to disclose the fact their products contain BPA.[9] They further allege the defendants violated the Missouri Merchandising Practices Act, which prohibits deceptive, false and unfair practices in the sales of products to consumers.

The growing concern over BPA exposure has led a number of retailers to stop using BPA. Companies such as Patagonia Inc., Whole Foods Markets, and Mountain Equipment Co-Op have ceased selling polycarbonate bottles. Additionally, some large retailers have indicated they will discontinue sales of these products, which may lead other major retails to follow the same path. In light of the controversial issue of Bisphenol-A in consumer products, and subsequent legislation and litigation, companies that manufacture or sell products containing the chemical should be aware of how BPA affects their own products.

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