California Lists BPA as a Reproductive Toxicant under Prop 65
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 under the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as "Proposition 65" or "Prop 65") on May 11, 2015. Prop 65 requires the governor of California to publish, at least annually, a list of chemicals "known to the state to cause cancer or reproductive toxicity." Consumer products containing Prop 65-listed substances may be subject to labeling requirements under the law.
OEHHA's panel of experts for identifying reproductive toxicants, the Developmental and Reproductive Toxicant Identification Committee (DARTIC), voted unanimously on May 7, 2015 to list BPA as a reproductive toxicant.
DARTIC previously had considered including BPA on the state's Prop 65 list of reproductive toxicants in 2009 but voted unanimously against its inclusion, noting that the experimental animal data cited for listing were insufficient. Earlier this year, OEHHA requested that DARTIC reconsider listing BPA based on new epidemiological and toxicological data that had become available since 2009, specifically focusing on BPA and female reproductive toxicity.
Reproductive hazard identification by DARTIC is just one means of listing substances on Proposition 65. In January 2013, OEHHA sought to list BPA as a reproductive toxicant under the authoritative bodies listing mechanism based on a 2008 report by the by National Toxicology Program's (NTP) Center for the Evaluation of Risks to Human Reproduction, which found "clear evidence" of developmental toxicity at high doses of BPA. OEHHA also proposed at the time a maximum allowable dose level (MADL) for BPA of 290 micrograms per day. The American Chemistry Council (ACC) brought an action in California state court in March 2013 seeking to prevent the listing from going forward. OEHHA had proceeded to list BPA under Prop 65 while the litigation was ongoing; however, on April 19, 2013, the court issued a preliminary injunction ordering BPA be removed from Prop 65 list pending a final resolution of the ACC lawsuit (American Chemistry Council v Office of Environmental Health Hazard Assessment et al.). As a result, OEHHA removed BPA from the list of chemicals known to the state to cause reproductive toxicity just eight days after listing it. In December, the court denied ACC's petition, finding that OEHHA did not abuse its discretion in relying on the NTP report as a basis for listing BPA under the authoritative bodies mechanism. The case is currently on appeal.
For additional history on OEHHA's actions with respect to BPA, see the PackagingLaw.com article, BPA and Proposition 65: Follow the Bouncing Ball.