Plastic Additive Bisphenol–A: Product Liability Class Actions on the Rise

Over the past two months, four separate class actions have been filed against the manufacturers and distributors of plastic products containing Bisphenol–A (BPA). We believe that additional lawsuits are likely. This bulletin will help you determine whether you are a potential target of these claims and will provide some practical considerations for defending your company.

BPA is an industrial chemical that is used primarily to make polycarbonate plastic and epoxy resins, both of which are used in a wide variety of applications. Commercial production began in 1957 in the United States and in 1958 in Europe.

Polycarbonate plastic’s appeal is its unique combination of optical clarity, shatter-resistance and high heat-resistance. Its applications include eyeglass lenses, medical equipment, water bottles, digital media (e.g., CDs and DVDs), cell phones, consumer electronics, household appliances, safety shields, construction glazing, sports safety equipment and automobiles.

Epoxy resins are used for industrial floorings, adhesives, printed circuit boards, industrial protective coatings, powder coatings, automotive primers and metal can coatings (e.g., canned foods and powdered baby formula).

The Controversy
Environmental advocates claim that studies over the past 20 years show BPA to be not only a ubiquitous pollutant in the human body, but also a developmental toxin at low doses. Concerns have been expressed that BPA may pose risks for early puberty, prostate effects, breast cancer and behavioral impacts from early-life exposures.

The focus of the recent lawsuits is the potential for BPA exposure from food and beverage containers. Disputed exposure studies have asserted that chemical migration increases at high temperatures (i.e., boiling water and microwaving) or with old or scratched bottles. Elevated levels of BPA allegedly have been found in cans of baby formula.

Recent Events
March 12, 2008: A putative class action lawsuit is filed in state court in Los Angeles, California against five leading manufacturers of baby bottles alleging consumer fraud for their failure to warn of the alleged propensity of BPA to leach out of the bottles when heated.

April 14, 2008: The National Toxicology Program releases an evaluation of the BPA scientific literature, acknowledging that there is some concern for neural and behavioral effects in fetuses, infants and children at current human exposure levels. The NTP also expressed some concern for BPA exposure in these populations based on effects in the prostate gland, mammary gland, and an earlier age for puberty in females.

April 16, 2008: Congress calls on the FDA to reassess its safety standards for BPA based on new concerns over health risks.

April 18, 2008: Health Canada announces that BPA will be deemed a “dangerous substance” and proposes to ban polycarbonate baby bottles and develop stringent migration targets for BPA in infant formula cans.

April 18-21, 2008: Several manufacturers, including Playtex and Nalgene, announce a shift to BPA-free products. Major retailers announce they will quickly phase-out baby bottles containing BPA.

April 22, 2008: A putative class action lawsuit is filed in the United States District Court for the Northern District of California (Sacramento) against Nalgene Nunc International, makers of Nalgene sports bottles, by a woman on behalf of herself, her two daughters and all others similarly situated. The lawsuit alleges that the defendant knew that BPA could leach out of sports bottles, but did not warn consumers. It seeks unspecified damages, but does not allege personal injuries.

April 30, 2008: A putative class action is filed in the United States District Court for the Western District of Missouri against the five leading manufacturers of polycarbonate (PC) baby bottles—Gerber, Evenflo, Avent, Playtex, and Dr. Brown’s premised on Missouri’s Consumer Protection Laws on behalf of consumers who purchased plastic baby bottles and training cups containing BPA.

May 6, 2008: A putative bi-lateral class action is filed in the United States District Court for the Northern District of Illinois against Avent America, Inc. and all producers, manufacturers and/or distributors of plastic bottles containing BPA premised upon Illinois Consumer Fraud, strict product liability and failure to warn theories.

Common Elements
All of the currently pending BPA lawsuits share common elements:

• The defendants are manufacturers and distributors of BPA containing items that come into contact with food or beverages, particularly baby bottles or sports bottles used by children.
  
• The plaintiffs purport to represent all consumers of the products on a nationwide basis.
  
• The complaints contain references to human exposure studies and animal experiments which the plaintiffs claim were known to the industry, but hidden from the public.
  
• The plaintiffs do not claim personal injuries, but rather various forms of consumer fraud and common law negligence based on the defendant’s alleged failure to warn.
  Plaintiffs seek return of their purchase price.
  
• The complaints seek injunctive relief and punitive damages.

What’s Next?
Sports bottles and baby bottles are not the only consumer products containing BPA. The product is also used in food storage containers, canned food or beverages, food preparation equipment (e.g., blenders, mixers, bowls and utensils) toys and pacifiers. Some reports of biomonitoring studies have indicated that up to 95% of Americans tested have some level of BPA in their bloodstreams.

The potential list of defendants in such cases, therefore, includes BPA manufacturers as well as any company that makes, uses or sells BPA containing products that come into contact with food or beverages or could otherwise give rise to ingestion of BPA (e.g., toys).

Practical Considerations
While replete with allegations regarding the alleged health effects of BPA on children, the complaints in the pending cases actually seek to recover for property damage only. The compensatory relief plaintiffs request is the cost to replace the product. The scope of the exposure to any one of the defendants, therefore, would be the cost of replacing each BPA-containing product sold in the United States within the last 3 to 5 years (the likely useful life of such a product). While this cost may run into the tens of millions of dollars for each defendant, it is at least calculable. The settlement value of such a claim would be significantly less.

The long term implications of not aggressively addressing the problem can be severe. It is our experience that plaintiffs in these property damage/ product replacement cases fill their complaints with marginally relevant and incendiary statements about health risks and animal studies as a way of foreshadowing their eventual goal of pursuing personal injury actions worth a great deal more than the property damage claims currently at issue. The defendants have an incentive to aggressively defend themselves because an adverse finding on the health-related allegations in the property damage cases could prevent the defendant from denying the same allegations in a later personal injury case. Any settlement would likely carve out personal injury cases, so the only way to truly make such allegations go away is to defeat them at the class certification stage or on the merits.

The cost of such a defense can be managed through a coordinated joint defense effort among the defendants, paid for on a pro rata or a market share basis. Insurance is also sometimes available for product liability claims.

Wildman Harrold has been tracking the issue of alleged endocrine disrupting chemicals like BPA for the past several years. With a very few notable exceptions, there has not been a great deal of litigation involving claims of endocrine disruption. Because of the very complicated nature of the endocrine system, and the abundant sources of both naturally occurring and synthetic substances that promote the production of and/or mimic estrogen, proof of causation in such a case should be very difficult for plaintiffs.