Companies that manufacture or distribute polycarbonate plastic bottles or other food, water or beverage containers made with the industrial chemical Bisphenol-A (commonly referred to as "BPA") need to be aware of an emerging trend in consumer class action lawsuits challenging such use of BPA and alleging that it has harmful health effects. BPA has been used as an additive in plastic consumer products for many years, so why the sudden spate in consumer class litigation? A recent draft report issued by the National Institute of Environmental Health Sciences may have contributed to the emergence of this consumer litigation activity.

On April 14, 2008, the National Toxicology Program ("NTP"), which is part of the U.S. National Institute of Environmental Health Sciences, issued its Draft NTP Brief on Bisphenol A for public comment and peer review. BPA is a chemical used primarily in the production of polycarbonate plastics and epoxy resins. Polycarbonate plastics, which are generally transparent, hard and shatterproof, have been used to make a variety of consumer products, including baby bottles, refillable water bottles, drinkware, tableware and other types of food and beverage containers. BPA is also found in epoxy resins that have been used to line metal food and beverage cans, bottle tops and water supply pipes. The NTP Draft Brief concluded that there is "some concern" for neural and behavioral effects of BPA in fetuses, infants and children at current levels of human exposure. The Draft Brief further expressed "some concern" for exposure in these populations based on effects in the prostate and mammary glands and an acceleration of the onset of female puberty. According to the Draft Brief, these conclusions were based on laboratory animal studies of low-level exposure to BPA during the animals' development. The NTP Draft Brief also concluded that additional research is needed to understand the implications of these animal studies for human health.

It bears note that for many years, the U.S. Food and Drug Administration (the "FDA") has approved the use of polycarbonate in food contact applications. While the FDA is now actively reviewing the conclusions of the NTP Draft Brief, it recently reiterated its belief that "there is a large body of evidence that...exposure levels to BPA from food contact materials, including for infants and children, are below those that that may cause health effects." Likewise, a draft risk assessment that the Canadian government issued last month for public comment found consumer exposure to BPA, including infants' exposure from polycarbonate baby bottles, below levels that could cause health effects. At the same time, Health Canada considered the size of the gap between exposure and potential effect insufficient and proposed to ban the importation, sale and advertising of polycarbonate baby bottles. The public attention generated by these developments caused many retailers in Canada to remove BPA-containing baby bottles and water bottles from their shelves, and some retailers in the United States have announced plans to phase such products out by early next year.

On the heels of these developments, several consumer class action complaints have spawned in jurisdictions throughout the United States. The initial lawsuits targeted the makers of BPA-containing baby bottles and other beverage containers sold for use by infants and children. However, a federal class action lawsuit filed this week in federal court in Chicago attacks the use of BPA in any polycarbonate plastic bottles, regardless of the intended user. The class action is allegedly brought on behalf of all consumers throughout the United States who, over the last five years, have purchased polycarbonate plastic bottles containing BPA. Further, while only one manufacturer is named as a defendant in the lawsuit, the plaintiff seeks to establish a "Defendant class" of all producers, manufacturers, and distributors of such plastic bottles. In other words, the plaintiff is seeking to have the case apply to and bind all entities involved in the chain of distribution of plastic bottles containing BPA, not just the one manufacturer named as a defendant in the Complaint.

At Schiff Hardin, we have assembled a multi-disciplinary team of lawyers who specialize in the defense of toxic tort, product liability and consumer class action lawsuits, and lawyers having degrees in biochemistry, chemistry, chemical engineering, and molecular, cell and developmental biology to assist with the science. We have followed the recent developments concerning BPA, and the lawsuits that have been filed over BPA-containing products. We are uniquely poised and qualified to counsel you and your company to create a strategy that will keep you out in front of this problem and address your potential liability exposure. If you would like a copy of the alleged class action complaint referred to in the preceding paragraph or the NTP Draft Brief on Bisphenol A, please contact any one of the following Schiff Hardin partners:

Schiff Hardin LLP