According to a news source, the Food and Drug Administration (FDA) is
poised to prohibit the use of bisphenol A (BPA) in baby bottles and sippy cups
in response to a petition filed by the American Chemistry Council. A council
spokesperson apparently stated during an October 7, 2011, press briefing
that while scientific data and government assessments have declared the
chemical safe and U.S. manufacturers ceased making these products with the
plasticizer in response to market demand, the council took the action because
of “quite a bit of legislative activity around a product that doesn’t exist” and
“[c]onfusion about these products has become an unnecessary distraction to
consumers, legislators and state regulators.”

An environmental advocate reportedly characterized the council’s petition as
a “stunning reversal,” noting that the “industry spent millions this year fighting
efforts in California and other states to ban BPA in baby bottles and sippy
cups.” The Environmental Working Group called on the industry to “drop any
further objections to phasing out BPA in baby formula containers and other
canned food.” See American Chemistry Council News Release, October 7, 2011;
BNA Product Safety & Liability Reporter, October 11, 2011.

Meanwhile, California Governor Jerry Brown (D) has signed a bill (A.B. 1319)
that places limits on bisphenol A (BPA) in children’s products. The legislation
was intended to prohibit the chemical’s use in baby bottles and sippy cups,
but extends to other products as well.

The new law, enacted on October 4, 2011, will be known as the “Toxin-Free
Infants and Toddlers Act.” It mandates that after July 1, 2013, any bottles
or cups that are “intended to be filled with any liquid, food, or beverage
intended primarily for consumption from that bottle or cup by children three
years of age or younger,” cannot contain BPA at a detectable level above 0.1
parts per billion. BPA, found in many plastic food and beverage containers, is
widely considered an endocrine disrupter, which means that it can act like an
artificial hormone when it enters the human body.

The new law excludes any container intended to contain liquid, food or beverages for consumption by the general population, as well as medical devices. It does not, however, preclude the Department of Toxic Substances Control from prioritizing or taking “action on any products containing bisphenol A in order to limit exposure to or reduce the level of hazard posed by bisphenol A.” Manufacturers are required to use the least toxic alternative when replacing BPA in regulated products, and they “shall not” replace BPA with any toxins that may cause “birth defects, reproductive harm or developmental harm,” or are included on the list of chemicals known to cause cancer or reproductive toxicity. The new law will be codified at California Health and Safety Code sections 108940 and 108941.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.