The American Chemistry Council and several retail and manufacturing associations have asked the Superior Court of California to set aside an ordinance that bans the sale, manufacture and distribution of products that contain bisphenol A and are intended for children under 3 years old.
The ordinance also bans toys and child-care articles for children under 3 that are made with or contain phthalates. Phthalates are used to soften plastics for food containers, toys, pacifiers and teething rings.
The coalition of business groups asked the court Oct. 25 for a preliminary injunction to prevent the law from going into effect Dec. 1. Judge Peter Busch was expected to set a hearing on that motion for sometime after Nov. 16.
The ban would be the first in the U.S. against products that contain BPA. It was passed June 6 by the San Francisco board of supervisors and signed into law June 15 by Mayor Gavin Newsom.
The products at the heart of the controversy are polycarbonate baby bottles, as well as baby food and infant formula sold in cans or jars with metal tops, as they contain epoxy resins made from BPA.
A number of government bodies globally - including the Consumer Product Safety Commission and the Food and Drug Administration - all have deemed BPA not harmful in the past three years. In addition, an evaluation of more than 70 animal studies published in the peer-reviewed journal Critical Reviews in Toxicology said earlier this year that the weight of evidence ``does not support the hypothesis that low doses of BPA adversely affect human reproduction and development health.''
``We consider the entire ordinance, including the phthalates ban, to be legally and scientifically flawed,'' said Steven Hentges, executive director of the PC business unit of the American Plastics Council, which is part of ACC. ``We need to set the record straight'' so that other cities don't look to adopt similar laws, Hentges said in a telephone interview Oct. 25.
He said the strong facts about BPA are why the coalition focused on that portion of the ordinance in its complaint. ``We chose to use the set of BPA facts to support the claims.''
The lawsuit filed by ACC, the California Grocers Association, the Juvenile Products Manufacturers Association, the California Retailers Association and the largest children's department store in San Francisco, Citikids Baby Store, also asked the court to declare the ordinance invalid on the grounds that the city failed to follow its own requirements in enacting the law and on the grounds it is pre-empted by California and/or federal law.
``The ordinance was rushed through without full consideration of the economic consequences or the science underlying it,'' said Daniel Kolkey, a lawyer with San Francisco law firm Gibson, Dunn & Crutcher LLP, which filed the lawsuit on behalf of the coalition members. ``The city of San Francisco doesn't have the authority to regulate things already regulated by the federal and state governments. If every city did that, it would be a recipe for chaos.''
The FDA has approved BPA for use in food packaging.
``The FDA has approved polycarbonate baby bottles and epoxy resins that line every metal can and the metal lids of jars,'' Kolkey said.
The lawsuit argues the ordinance also would force vendors to pull from their shelves no-spill baby cups and plastic utensils, plates and bowls made with polycarbonate.
The lawsuit also notes that the state of California has adopted FDA's regulations for those products, precluding municipalities from establishing conflicting regulation.
``We think the pre-emption arguments are pretty strong and that the city does not have the authority to trump what the FDA is doing,'' Hentges said.
The lawsuit also contends that the San Francisco board of supervisors failed to make an economic analysis of the impact of the ordinance as required by Proposition I, which was approved by city voters in 2002. The lawsuit called that failure ``an abuse of discretion'' and said the ordinance will ``egregiously impact toy retailers, grocers and consumers.''
Richard Woo, owner of Citikids, estimates the ordinance could prevent him from selling one-third of the products that he has in stock.
About 6 billion pounds of BPA is produced globally, with 25 percent of that manufactured in the United States.