The headlines are glaring. Statements such as “Poison in the Water Bottles” or “Chemical in Baby-Bottle Plastic Could Pose Health Risk” emerged in 2008 like a fabled sea creature.

It started simply enough — Canadian scientists warned their government about dangers with the chemical Bisphenol-A (BPA). The Canadian study was followed by an American study, which found BPA essentially safe. During the back-and-forth, there has been no shortage of media debate as to whether there are any real risks or what those risks might be.

But, as is often the case, the debate is not limited to the media: The same conflict is currently taking place among plaintiffs who have filed class actions against the manufacturers and retailers of products containing BPA. The vast media coverage and the test lawsuits beg one question: Is BPA the next mass tort, and, if not, what can be expected from BPA litigation?

BPA in the Courtroom

Not long after BPA hit the headlines in 2008, a flurry of class action lawsuits were filed across the country. Consumers who had purchased products made with BPA, especially parents who had been using baby bottles containing the chemical, wanted justice for what they perceived to be a product endangering their children.

Most BPA plaintiffs do not allege that the chemical has caused them or their children health problems. Instead, their claims are based on breach of contract, breach of warranty and violations of consumer protection laws. The plaintiffs claim that manufacturers and retailers have long known about BPA’s potential dangers and intentionally kept them a secret.

In one complaint, the plaintiffs accuse the defendant-manufacturers of making “a calculated and profit-driven decision to continue, literally, to put toxic products into the mouths of babies.” The plaintiffs claim that if they had known about the potential risks associated with BPA, they would not have purchased the defendants’ products containing the chemical.

In August, the Judicial Panel on Multidistrict Litigation consolidated the pending BPA actions in the Western District of Missouri. MDL No. 1967 consists of 14 actions, originally filed from California to Connecticut, and at least nine additional tag-along actions, which will likely be consolidated as well. The MDL is in its very early stages. Each plaintiff will file an amended complaint against one or more of the defendants.

The Future of BPA Litigation

Should we expect BPA to be the mass tort of 2009? That will likely depend on the outcome of MDL No. 1967 and further studies of BPA.

Knoll Lowney, a Seattle attorney representing several plaintiffs, does not think so. For one thing, the lack of conclusive scientific evidence linking BPA to health problems makes proving causation and damages a huge hurdle for plaintiffs. According to Lowney, these lawsuits are “part of a new wave of product safety litigation, aimed at holding manufacturers to a higher standard using consumer protection laws. ... We are arguing that manufacturers have a duty of disclosure as to safety issues when the manufacturer knows about it and the public doesn’t.”

If holding manufacturers to a higher standard and getting rid of products containing BPA is truly the goal, the plaintiffs already may have succeeded, even without a judgment. Since the BPA controversy hit the news, several manufacturers and retailers have responded by phasing out products that contain BPA, especially children’s products. Toys “R” Us and Wal-Mart no longer carry baby bottles containing BPA. Playtex will stop manufacturing them and has begun marketing BPA-free bottles.

Most of these manufacturers and retailers are not stating that BPA is unsafe. They are reacting to public pressure. Playtex’s vice president and general manager said in a press release in April, “While U.S. and worldwide regulatory bodies continue to deem [BPA] safe, as a leader in infant care products, we are listening to consumer concerns and we believe the right thing to do is eliminate any confusion or doubt that parents may have. For this reason, we will stop using BPA in our products this year and we are offering consumers a chance to immediately switch to BPA-free infant products.”

Legislatures also have responded. In 2008, legislation was introduced that would ban or limit BPA both at the federal level and in several states. Rep. Hilda Solis (D-Cal.), a co-sponsor of the Kid-Safe Chemicals Act of 2008, said, “Recent news regarding bisphenol A in baby bottles underscores the need for significant reform to ensure children are not unnecessarily exposed to chemicals which threaten their health and environment.” Given the publicity BPA has received, it is likely that we will see even more BPA-focused legislation in 2009.

Ultimately, MDL No. 1967 and the ongoing studies of BPA’s effects on humans likely will have the largest impact on litigation in this area. Regardless, BPA’s presence in the headlines and the courtroom has led manufacturers, retailers and legislators to tighten the reins. BPA plaintiffs may or may not win their pending lawsuits, but they sure have shaken things up. The baby bottle debate is one to keep your eye on in 2009.

Farron Lennon and Jamila Johnson are attorneys in the Seattle office of the Pacific Northwest regional law firm, Schwabe, Williamson & Wyatt. Lennon can be reached at 206-407-1571 or flennon@schwabe.com. Johnson can be reached at 206-407-1555 or jajohnson@schwabe.com.

What Is BPA?

Bisphenol-A (BPA) is a monomer — a small molecule that bonds with other small molecules — used to increase heat resistance and durability in plastic bottles, and as an epoxy can coating to prevent corrosion and food contamination. But it is also used in products such as CD cases, cell phones, computers and safety glasses. Products made from BPA have been in commerce for more than 50 years.

Most of the controversy arises from the fact that BPA is an endocrine disrupter, which can mimic the body’s hormones. This is what some scientists worry can cause negative health effects. Studies have linked endocrine disruptors to negative medical effects in animals. This has created concerns that low-level exposure also may affect humans in similar ways.

Critics of BPA allege a correlation between BPA use and various ailments, such as hormone-mediated cancers (breast and prostate cancers), abnormal penile development, early sexual maturation in females, neurobehavioral defects (attention deficit hyperactive disorder), childhood obesity, Type II diabetes and a decrease in sperm count.

Proponents of BPA argue that the chemical’s benefits outweigh any risks. The epoxy resins derived from BPA protect the contents of food and beverage cans from contamination and give canned foods their long shelf life. Plastic bottles containing BPA are much less expensive than BPA-free bottles. A BPA-free bottle can sell for as much as $10, more than twice the price of bottles with BPA. The FDA has consistently supported the use of BPA, recently saying, “Current levels of exposure to BPA through food packaging do not pose an immediate health risk to the general population, including infants and babies.”

The BPA studies released in the last couple years have been contradictory and far from conclusive. Some suggest that BPA can be harmful, particularly to infants. Others have called the risks “negligible.” Most of these studies have been done on animals, which critics argue is insufficient to accurately predict BPA’s effects on the human body.

Most recently, the FDA Science Board reported that assessments of BPA have had important limitations and more research needs to be done to determine whether BPA is safe or not. That seems to be the consensus.

Researchers are certainly looking into it, more than ever, and we should expect to hear their reports in the coming months and years.

– Farron Lennon and Jamila Johnson

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