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OEHHA has also withdrawn its January 25, 2013, proposal to establish a maximum allowable dose level for BPA.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