Effective May 11, 2015, California's Office of Environmental Health Hazard Assessment (OEHHA) added bisphenol A (BPA) to the list of chemicals known to the state to cause reproductive toxicity for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65. BPA has numerous consumer applications, including to make the hard clear plastic called polycarbonate, some sealants, and thermal paper such as the paper used to print cash register receipts.
The decision comes after a determination made by OEHHA's advisory panel, the Developmental and Reproductive Toxicant Identification Committee (DART-IC) that BPA was clearly shown through scientifically valid testing according to generally accepted principles to cause reproductive toxicity, based on the female reproductive endpoint.
Whether and to what extent BPA causes reproductive toxicity has been the subject of intense debate in the scientific and regulatory communities for several years. In conjunction with DART-IC's determination, the American Chemistry Council (ACC) issued a statement strongly disagreeing with the decision because it is "not supported by the extensive scientific record, presented to the committee, and is completely contrary to explicit input provided by the US Food and Drug Administration [FDA]." In fact, in April, the FDA's acting chief scientist submitted a letter to the DART-IC, stating that the results of the FDA's own comprehensive research "do not support BPA as a reproductive toxicant."
Under Proposition 65, businesses are required to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone to a listed chemical. This warning can be given by a variety of means, such as by labeling a consumer product, posting signs at the workplace, distributing notices at a rental housing complex, or publishing notices in a newspaper.
Once a chemical is listed, businesses have 12 months to comply with warning requirements. However, OEHHA's decision to list BPA almost certainly will be litigated due to the scientific uncertainty surrounding its reproductive effects, and if the court grants a preliminary injunction, the duty to provide a warning will be put on hold until the litigation is resolved.
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