Birth Defect Lawyer Blog

At the end of March, the Food and Drug Administration (FDA) will announce whether it intends to ban bisphenol-A (BPA) in food and beverage packaging. BPA has already been banned in Europe and Canada.

Until now, BPA has been used as an internal coating of metal food and beverage cans used to protect the food from direct contact with the can. It is also found in most plastic packaging. Yet more and more studies have shown that BPA is an endocrine disrupter. An endocrine disrupter mimics natural hormones and either causes the body to overreact to the stimulus or respond at inappropriate times. Endocrine disrupters have been linked to cancer, obesity, reproductive disorders, and depression or anxiety. BPA, meanwhile, has been linked to reproductive problems, birth defects, cardiovascular disease, and metabolic disorders.

Over the past month, pressure has been building for the FDA to ban BPA in packaging. Congressman Ed Markey of Massachusetts formally petitioned the U.S. Food and Drug Administration to ban the use BPA -- the first Congressman to do so. Even the American Chemistry Council -- hardly known for its environmental concerns -- petitioned the FDA in December to ban BPA from baby bottles. While evidence is growing that exposure to even small doses of BPA, especially while pregnant, can lead to a range of health problems later in life, the chemical is still widely available. Of those tested for BPA, more than 90% had it in their bloodstream.

It remains to be seen which action the FDA will take -- whether it will pass a complete ban or a modified ban, or none at all. However, with nearly 200 studies establishing BPA's harm to those exposed, it seems clear that something needs to be done to curb the chemical. If your child has a birth defect that you believe may be due to your exposure to BPA, could you successfully sue for relief? It depends on what your intention would be. If you want to sue the manufacturer of the products you use, you would need to determine which products contained BPA and whether those products were responsible for your child's birth defect -- especially given the number of other toxins in the environment. You would argue that the manufacturer had a duty to consumers to create a reasonably safe product, breached that duty by creating an unreasonably dangerous product, that breach caused your injury (through exposure), and the result was your child's birth defect.

Since BPA exposure could lead to health problems in the distant future, it might be difficult to prove that a specific product harmed you, unless you have a long history with that product. Instead, if you want to ensure that BPA is kept out of all product packaging, you might consider suing the FDA to enforce food quality standards. The only problem is that at present, the law still permits BPA in packaging. Hopefully that may soon change.