The American Chemistry Council (ACC) has filed a complaint for declaratory and injunctive relief in a California state court against California EPA’s Office of Environmental Health Hazard Assessment (OEHHA), which in January 2013 proposed listing the chemical bisphenol A (BPA) as a reproductive toxicant under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). ACC v. OEHHA, No. n/a (Cal. Super. Ct., Sacramento Cnty., filed March 1, 2013). Further details about OEHHA’s proposed BPA listing appear in Issue 468 of this Update.

According to ACC, the agency’s scientific advisory panel, relying on the same document that OEHHA claims supports the listing—the National Toxicology Program’s Center for the Evaluation of Risks to Human Reproduction (NTP-CERHR) Monograph on the Potential Human Reproductive and Developmental Effects of Bisphenol A—unanimously concluded in July 2009 that BPA does not satisfy the criteria for listing developmental toxicants under Prop. 65. NTP-CERHR apparently concluded that “the possibility that bisphenol A may alter human development cannot be dismissed” and that “studies in laboratory animals provide only limited evidence for adverse effects on development and more research is needed to better understand their implications for human health.” ACC contends that this is insufficient evidence of reproductive toxicity.

ACC claims that the proposed listing constitutes an abuse of discretion and represents the only time OEHHA has ever “attempted to overrule a decision by the DART-IC [Developmental and Reproductive Toxicant Identification Committee] not to list a chemical by relying on precisely the same evidence and science that the DART-IC found to be insufficient.” While ACC acknowledges that the maximum allowable dose level for BPA that OEHHA has proposed is likely not exceeded by any product containing the chemical, the trade group cites the immediate and detrimental effects on manufacturer, retailer and consumer behavior in Canada and other states when BPA regulatory action was proposed.

In this regard, ACC states, “Failure to enjoin OEHHA from listing BPA will create scientifically unwarranted and spurious fears among an unsuspecting public, result in an imminent and irreversible de-selection by consumers and retailers (among others) of products containing PBA, which products provide important health and safety benefits without fully equivalent substitutes, and cost millions of dollars in losses among manufacturers, distributors, retailers, farmers, and the economy in general.”

Noting that the chemical is used in a wide range of products in addition to food-contact material, such as syringes, dialyzers, eyeglass lenses, sports safety equipment, cell phones, computers, hair dryers, automobiles, toys, and industrial flooring, ACC claims that listing BPA “without evidence of adverse effects in humans at any conceivable dose” would have immediate, serious and adverse effect on the public and the industry. ACC contends that it has submitted comments throughout administrative proceedings involving BPA in California and has thus “exhausted all available administrative remedies, or is excused from further exhausting them based on the doctrines of futility, irreparable harm, and the administrative agency’s lack of jurisdiction to proceed further.” It seeks a declaration that the proposed listing of BPA is contrary to California law and temporary, preliminary and permanent injunctions to stop OEHHA from taking any further action in the matter.