Alaska Injury Law Blog
The Alaska Personal Injury Law Group recently posted an article about how the FDA and other federal agencies have systematically attempted to use preemption to make manufacturers immune from suit for injuries caused by their defective products. One point of discussion was how the FDA has weakened regulatory protection of consumers from dangerous, defective drugs. Now, just a few days later, an independent group of objective scientists has issued a new report chastising the FDA for its approval of bisphenol A, commonly referred to as BPA.
The new report was issued by the Science Board, a group of independent scientists that provides advice to the Commissioner of the FDA. The Science Board provided peer review of the FDA’s draft assessment of use of BPA in food contact applications. The Science Board concluded that the FDA position was seriously flawed.
BPA is an industrial chemical used to make polycarbonate plastic and an epoxy resin used in many consumer products. The FDA approved it for use in baby bottles and as a liner in food containers like baby formula cans. It is also used extensively in other food containers, in sport bottles such as Nalgene bottles, and as a liner in soda cans. In mid-2008, the National Toxicology Center issued an extensive report addressing the health risks resulting from exposure to BPA, including effects on brain and behavioral development in infants and small children, and the potential to cause cancer. In response, the FDA steadfastly maintained its position that BPA was safe.
The Science Board has now found multiple flaws in the FDA assessment. First and foremost, the FDA assessment failed to provide “reasonable and appropriate scientific support” for its finding that the public wasn’t at risk from BPA. Second, the FDA ignored many peer reviewed studies that found BPA presents serious health hazards. Instead, the FDA relied upon two studies funded by the chemical manufacturers’ association, only one of which was peer reviewed. The studies ignored by FDA show multiple risks, including impaired neural development, developmental changes in children, impaired reproductive tract development and diabetes. Third, the FDA assessment improperly analyzed the margin of safety (MOS) provided by the FDA standard for BPA exposure. The Science Board found extensive evidence that the FDA standard for allowable exposure levels was at least an order of magnitude too high, particularly for children.
The safe allowable level of BPA exposure is a major health issue. More than three million tons of BPA are used every year. A study by the Center for Disease Control found that 95% of the population had measurable BPA in their urine. Thus, the failure of the FDA to properly evaluate the risks of BPA is a major public health concern. It also illustrates once again how ineffective the FDA is in regulating industry and what a joke it is for FDA to assert that compliance with its ineffective regulatory efforts should immunize manufacturers from liability for injury caused by its defective products.
For those interested in exploring the health implications of BPA further, there is a wealth of information about BPA and studies of its adverse health effects here.