After a state court in California granted the American Chemistry Council’s (ACC’s) request for preliminary injunction and ordered Cal/EPA’s Office of Environmental Health Hazard Assessment (OEHHA) to remove bisphenol A (BPA) from the list of chemicals known to the state to cause reproductive toxicity, OEHHA did so. OEHHA had argued that ACC’s request to enjoin OEHHA from “listing, or taking any further action in listing” BPA was moot because the Proposition 65 (Prop. 65) listing action took effect April 11, but the court said it had the authority to order OEHHA to remove the chemical from the list.

According to the court, ACC demonstrated that it had a reasonable probability
of prevailing on the merits of its claim that the National Toxicology
Program report on which OEHHA relied for its listing did not identify BPA as
causing reproductive toxicity. “[T]here was no definitive statement that BPA
is a developmental toxicant and could adversely affect development or a
statement indicating that it was reasonable to assume that the rodent data
was relevant to humans,” the court stated. “Moreover, the Report reiterates on
a number of occasions that there is insufficient evidence and more research
must be conducted to understand the effects on humans. Indeed, the Report
specifically states that the ‘current literature cannot yet be fully interpreted for
biological or experimental consistency or for relevance to human health.’”

The court also determined that ACC adequately demonstrated that its
members would be irreparably harmed by BPA’s listing. In this regard, the
court quoted an ACC expert’s declaration that this “unprecedented” listing
would affect “‘all consumer products containing BPA, rather than a narrow
range of specific products.’ The listing ‘will cause widespread and irreversible
consumer deselection of products made from BPA . . . retailers will remove
products from store shelves and stop selling such products . . . and consumer
product manufacturers will move to reformulate their products . . . which
will adversely and irreparably impact members of the ACC, other chemical
manufacturers, wholesalers and retailers involved with BPA related products,
and the public, which will be deprived of the highly beneficial properties of
polycarbonate and epoxy resins.’”

OEHHA has also withdrawn its January 25, 2013, proposal to establish a
maximum allowable dose level for BPA. See OEHHA News Releases, April 19,

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.

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