A California state court has lifted an injunction that barred bisphenol A (BPA) from placement on the list of reproductive toxicants mandated under Proposition 65, the 1986 law requiring warnings to the public about exposure to chemicals “known to the state to cause cancer or reproductive toxicity.” Am. Chemistry Council v. Office of Envtl. Health Hazard Assessment, No. 34-2013- 00140720 (Super. Ct. Cal., Cty. of Sacramento, order entered December 18, 2014). BPA joined the Prop. 65 list in April 2013, but a court granted the injunction barring its inclusion one week later.

The court assessed whether the Office of Environmental Health Hazard Assessment (OEHHA) abused its discretion in finding substantial evidence that the regulatory criteria to list BPA were met. It found the American Chemical Council’s (ACC’s) argument that an entry to the list must be supported by “clear evidence that the chemical is known, not merely suspected, to cause cancer or reproductive toxicity in humans” to be an interpretation that is incorrect, the court said. It noted that precedent supported OEHHA’s argument that studies purporting to find a link between cancer or reproductive toxicity and the chemical in animals have been sufficient to support listing in the past. Further, OEHHA correctly “interprets its regulations to mean that, absent evidence to the contrary, effects observed in laboratory animals are assumed to be relevant to humans” based partly on a prior decision that suggested that “extrapolation from animals to humans is inappropriate only where evidence shows that experimental animals and humans differ from one another in ‘physiologically significant ways.’” Accordingly, the court found that OEHHA did not abuse its discretion in supporting its listing only with evidence that BPA may be harmful to animals.

The court also dismissed the argument that OEHHA could not list BPA because the state’s qualified experts, the Developmental and Reproductive Toxicant Identification Committee (DART-IC), reviewed the same evidence but did not list BPA on its own list. It agreed with OEHHA’s argument that “the state’s qualified experts listing mechanism and the authoritative body listing mechanism are separate and independent listing mechanisms. Under the statute, DARTIC’s opinion does not control. OEHHA is mandated by law to list a chemical even after the state’s qualified experts have declined to do so if the chemical meets one of the other listing requirements.” OEHHA further did not abuse its discretion by disregarding the opinion of the primary author of the studies used to support BPA’s listing, the court found.


Issue 550

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