BPA Lawsuits Less Likely After FDA Decision: Report

A recent FDA decision not to ban Bisphenol-A (BPA) is likely to have a chilling effect on any toxic tort litigation over the controversial chemical, according to a new report. 

In an article published earlier this week by Bloomberg BNA, attorneys speculate that there are likely to be fewer personal injury lawsuits or class action lawsuits against companies that make or use BPA, as a result of the FDA’s failure to ban the substance. However, consumer concerns are likely to continue to pressure the food industry to abandon use of BPA.

BPA is used to make many plastic products hard and shatterproof. Originally developed as a form of synthetic estrogen, it is used in the manufacture of many consumer products, such as bottles, cans, cups, baby bottles and other food containers.

Exposure to BPA is suspected of causing hormonal changes by impacting the human endocrine system. It has been linked to cancer, heart disease, diabetes, obesity and asthma. Some research has suggested that BPA can cause developmental abnormalities and other problems over time in infants and young children.

At the end of March, the FDA determined there was not enough data for the agency to change regulations allowing BPA in food packaging, denying a petition filed by the National Resource Defense Council (NRDC) in 2008 and fulfilling a recent settlement agreement to make a decision on the petition.

The agency’s investigation determined that there is no proof that very low levels of BPA that enter the body after exposure to the products are unsafe, and only minute amounts appear to pass from mother to child during pregnancy, according to the FDA findings.

More than a dozen class action lawsuits over BPA have failed since 2008, ending in dismissal due primarily to a lack of evidence, and with the FDA’s claim that it was unable to find any proof of danger in BPA exposure, there is little likelihood that more will be forthcoming.

There have been numerous studies that suggest negative health effects from BPA exposure, and the NRDC relied on a number of those studies in its petition, but the FDA applied what is known as the “Bradford Hill” criteria to weigh whether the studies actually showed a causal relationship between BPA and the various health effects it may have been linked to and could find no solid connection.

Courts also typically use the “Bradford Hill” criteria in the same way, and many lawyers are likely to determine that if the FDA’s use of the criteria found no causal links, then Courts are likely to continue to dismiss cases using the same methodology.

FDA officials have said that the decision is not the agency’s final determination, as the agency is still investigating BPA effects.

BPA bans have already been enacted in baby bottles in Canada and Europe, and France has banned it from all food packaging.

Despite the lack of formal restrictions on use of BPA in food containers in the United States, many companies have voluntarily decided to phase out the chemical from their product lines, such as Campbell Soup, H.J. Heinz Co. and Tupperware.