The American Council on Science and Health (ACSH) has responded to the Food and Drug Administration’s (FDA’s) recent review of bisphenol A in food contact applications, praising regulators for stopping short of a ban on the ubiquitous chemical but criticizing their concern for “hypothetical and non-existent health risks.” FDA has stated that it now shares the National Toxicology Program’s outlook on “the potential effects of BPA on the brain, behavior, and prostate gland in fetuses, infants, and young children,” and is considering a more aggressive oversight approach. To this end, the agency may seek new authority to govern BPA and its different formulations through the Food Contact Notification Program created in 2000. This regulatory framework not only requires manufacturers to provide detailed analysis on substance applications, but allows FDA to “quickly protect the public by revoking the use through a notice in the Federal Register.” Noting that BPA was first approved for use as a food additive more than 40 years ago, the agency apparently “believes that the more modern framework is more robust and appropriate for oversight of BPA than the current one.” See Law360, January 15, 2010; The New York Times and The Washington Post, January 16, 2010; Greenwire, January 18, 2010.

ACSH, however, has questioned the need for such measures. “BPA has been among the most well-studied substances known to man, and repeated evaluation by respected scientific bodies worldwide has without fail deemed BPA safe as typically used,” stated an ACSH spokesperson in a January 15, 2010, press release, which added that “since BPA became commonplace in the lining of canned goods, foodborne illness from canned foods—including botulism—has virtually disappeared.”

The American Chemistry Council (ACC) and Grocery Manufacturers Association (GMA) have seconded BPA’s longstanding and extensive safety record. GMA agreed with FDA and the Department of Health and Human Services that there is currently “no need for consumers to change their consumption habits,” welcoming further studies as adding to the “robust catalogue” of BPA research. In addition, ACC registered disappointment that “some of the recommendations are likely to worry consumers and are not well-founded.” See ACC and GMA Press Releases, January 15, 2010.

Meanwhile, Inside EPA has reported that FDA’s review might “clear the way for EPA’s [the Environmental Protection Agency’s] own chemical action plan for the substance, which is currently undergoing review at the White House Office of Management & Budget (OMB).” the draft action plan apparently “lists an array of actions the agency plans to take under its existing authority to limit risks posed by the chemical.” As an EPA spokesperson told the media source, the plan is slated for release in early 2010.

The FDA’s assessment has also reverberated overseas, with the European Food Safety Authority (EFSA) reportedly pledging to reexamine the issue with the U.S. agency to determine any implications for its own position. Moreover, the UK Food Standards Agency (FSA) purportedly stated that it does not anticipate any immediate policy changes as the result of FDA’s findings. “The situation in the UK hasn’t changed,” an FSA spokesperson told one reporter. “Working closely with [EFSA] and the [European Commission], we recently looked into the potential risks of bisphenol A and found that exposure of UK consumers to from all sources [sic], including all food contact materials, is well below levels considered harmful.” See, January 18, 2010.

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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.