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BPA Removed from Prop 65 List After Brief Appearance

By Mark L. Itzkoff

On April 11, 2013, California’s Office of Environmental Health Hazard Assessment (OEHHA) announced that it was adding bisphenol A (BPA) to the list of chemicals known to the state to cause reproductive toxicity under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65).  However, BPA’s time on the list was very short; on April 19, OEHHA announced that it had removed BPA from the Prop 65 list.

Why the sudden reversal?  OEHHA was required to delist BPA under a preliminary injunction issued on April 19 by the Superior Court for Sacramento County due, in part, to the limited scientific evidence that BPA is a reproductive toxin.  The court noted that OEHHA had based the listing on a 2008 report published by the National Toxicology Program (NTP), NTP-CERHR Monograph on the Potential Human Reproductive and Developmental Effects of Bisphenol A” (NTP-CERHR, 2008).  The court also noted however that the NTP report had been reviewed earlier by the State’s qualified panel of experts, the Developmental and Reproductive Toxicant Identification Committee (“DART-IC”).  In 2009, DART-IC determined the data in the study did not provide a sufficient basis to conclude that BPA is a reproductive toxin and declined to add BPA to the Proposition 65 List.  The court agreed with the ACC contention that the report did not identify BPA as a reproductive toxin and noted that OEHHA had never added a chemical to the Prop 65 list after DART-IC had rejected the listing based on the same report.  For these reasons, the court found that ACC was likely to prevail on the merits and issued the injunction.

In addition to removing BPA from the Prop 65 list, OEHHA announced that it is withdrawing the original proposal to list BPA published on January 25, 2013.  Thus, any new attempt by OEHHA to list BPA as a reproductive toxin under Prop 65 would require publication of a new notice and an opportunity for public comment.

It should be noted, however, that the injunction is a preliminary injunction and may be lifted on appeal or following a full trial.  Moreover, there are indications that OEHHA intends to continue its efforts to list BPA.  Specifically, on April 23, OEHHA posted the agency’s responses to comments received by OEHHA as a result of its January 25 Notice of Intent to List BPA.  In this document, OEHHA refutes the findings in ACC v OEHHA.  While not addressing the decision directly, OEHHA argues that the NTP formally identified BPA as a reproductive toxin in the NTP report and that BPA is therefore known to the state to cause reproductive toxicity.

BPA is the controversial chemical present in some hard plastic bottles and some food and beverage can linings.  If BPA were added to the Prop 65 list, products that expose consumers to the chemical could be required to carry a Prop 65 warning statement.

We will continue to monitor any efforts by California to add BPA to the Prop 65 list.

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