Beware of Plastics Manufacturers Bearing Gifts of BPA Bans

by Rena Steinzor

October 14, 2011

This post was co-authored by CPR President Rena Steinzor and CPR Policy Analyst Aimee Simpson.

In what at first glance seemed to be a startlingly uncharacteristic move, the American Chemistry Council (ACC) has petitioned the Food and Drug Administration (FDA) to update and strengthen its food additive regulation that sets out the approved uses for polycarbonate resins.   For those who don’t speak plastic, “polycarbonate resin” refers to plastic that contains bisphenol-A or “BPA”—an endocrine-disrupting chemical with significant health risks, especially for babies. Polycarbonate resin is found in everything from reusable food and beverage containers, to tin can linings and thermal receipt paper. 

While usually a staunch defender of unbridled BPA use in all things plastic, the ACC actually asked the FDA to remove approval for the use of BPA in “infant feeding bottles and certain spill-proof cups.” If this request has you scratching you head, you are not alone. Could it be that the ACC has finally surrendered to the mounting scientific evidence concerning BPA’s low-dose endocrine-disrupting effects and accepted that, at the very least, BPA should not be permitted in beverage vessels meant for children? Has the chemical industry beaten its swords into plowshares and made a small but progressive gesture toward better BPA regulation? Unfortunately, a look at the petition and its potential implications shows that the answer to these questions is “no.” 

Thanks to consumer pressure and state and municipal legislative bans, major manufacturers of BPA no longer sell their products to the manufacturers of baby bottles and sippy cups.  The ACC bases the petition on a portion of the FDA regulation that invites people to point out when manufacturers have abandoned old uses.   But the ACC emphatically denies that BPA in baby products raises health concerns.

Instead, the ACC follows the by-now familiar route of blaming the victim—a.k.a. the consumer—for BPA’s removal. Under this rationale, manufacturers did not make these decisions on the basis of “scientific evidence or safety,” but rather were forced to remove the chemical because consumers are consumed by mass hysteria and forced the poor, beleaguered companies to do it. If it is able to rewrite the record in this way, the FDA will make a decision long desired by public health experts for all the wrong reasons, and the ACC will be able to claim that voluntary-abandonment-in-a-hostage-situation is the only real reason for the agency’s action.

Compare the ACC’s petition to the Natural Resources Defense Council’s food additive petition filed over three years ago and as of yet unanswered, which requested that the very same BPA regulation be amended to prohibit BPA uses in all food-contact materials, not just containers used to feed babies.  Unlike the ACC’s petition, NRDC based its request on new toxicity data showing significant health and safety concerns surrounding BPA’s use in food containers. The two petitions could not be more different in their reasons for requesting an amendment, even if they achieve some similar goals.

BNA reported Tuesday that an FDA official said the agency would indeed propose the ban the ACC has requested in the “very near future.”  The fact that the agency turned on a dime to respond to the ACC, while ignoring the NRDC petition, does not bode well for how it will frame its decision, and is another offensive indication of the Obama Administration’s commitment to pandering to industry, large and small.   We’ll be watching to see what the agency cites as the main reason for its decision.

In the regulatory and legislative realm, the underlying reasons for a particular regulation are important. Consumer groups and state legislatures have worked hard to achieve small victories in the fight against a dangerous and pervasive endocrine-disrupting chemical. They have succeeded because policymakers believe their evidence regarding the health and safety risks associated with BPA—not because industry succumbed to consumer pressure and made an adjustment to suit their bottom line. 

 

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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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