FDA Agrees to Issue Ruling on BPA Petition
A federal court has approved an agreement between the Food and Drug
Administration (FDA) and the Natural Resources Defense Council (NRDC)
resolving NRDC’s complaint that the agency unreasonably delayed issuing a
final decision on its petition seeking a regulation that would prohibit the use
of bisphenol A (BPA) in food packaging. NRDC v. HHS, No. 11-5801 (S.D.N.Y., consent judgment filed December 7, 2011). Under the agreement,
FDA will issue its final decision on or before March 31, 2012.
Noting that its petition was filed three years ago, an NRDC spokesperson
said, “While we are glad FDA is finally going to make a decision [on] BPA in
food packaging and this is a major step forward in the legal process, it is
discouraging that FDA has not responded and that we had to ask the court to
intervene just to get FDA to do its job. The agency has been dragging its feet
on making a decision about BPA for far too long.” FDA reportedly indicated in
2010 that it had some concerns about BPA’s effect on children, but it has also
indicated that the chemical’s use in food packaging does not pose a health
risk. See FoodProductionDaily.com, December 8, 2011.
Meanwhile, in a separate matter, NRDC has also sued FDA alleging that it has violated the Freedom of Information Act (FOIA) by failing to disclose responsive records concerning BPA. NRDC v. FDA, No. 11-8662 (S.D.N.Y., filed November 29, 2011). According to the complaint, NRDC sought records from FDA in October 2011 involving “the regulation of BPA in food packaging, the extent of human exposure to BPA through food packaging and the health effects of such exposure, and testing and research on BPA conducted or funded by FDA and other federal agencies collaborating with FDA. The request also seeks communications between FDA and the American Chemistry Council, governmental agencies, members of Congress or the public, and other outside entities regarding BPA.”
NRDC alleges that FDA has responded by producing a small number of documents, which are apparently from a public docket, and allegedly do not satisfy the FOIA request. The agency also purportedly indicated that a response to other portions of the request would be forthcoming. As of November 14, 2011, the FOIA deadline for a response, “FDA has failed to provide NRDC with a complete response to its request.” NRDC seeks a declaration that the agency has violated FOIA and an injunction ordering FDA to provide the requested records.
