Current Update on Bisphenol-A Cases

The food industry is continuing to closely watch pending Bisphenol-A (BPA) actions in the Federal Courts and also the U.S. Food and Drug Administration (FDA).  Bisphenol-A is a chemical building block that is used in polycarbonate plastic and epoxy resins.  Nearly 50 suits, many of them class actions, have been filed against companies that manufacture polycarbonate bottles or infant formula. There are significant implications from the suits and the federal review process for manufacturers of canned and bottled food as well as beverages.

Currently, the majority of lawsuits have been coordinated in front of Judge Ortrie D. Smith in the Federal District Court for the Western District of Missouri.  The lawsuits have been joined together for discovery and other pretrial proceedings in an MDL captioned In Re Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, MDL Case No. 1967.   The defendants in these lawsuits include a number of baby bottle manufacturers and distributors, sports bottle manufacturers, and formula manufacturers.  Ice Miller represents one of the defendants in these cases.  

All of these lawsuits arise out of the same basic allegations.  Plaintiffs, which all seek to represent a nationwide class, contend that the products which they purchased from the defendants contained BPA.  In the case of bottles, the BPA was allegedly contained in the polycarbonate plastic used to manufacture the baby bottles.  In the case of formula, the BPA was part of the epoxy resin coating used to line the formula cans.  None of the Plaintiffs claim that they were injured by the BPA nor do any of the Plaintiffs claim that they, or their children, will require any future medical testing due to the alleged ingestion of the BPA.   In fact, both today and at the time when all of these products were sold, the FDA has maintained that BPA is safe for use in food contact applications.   

Despite this lack of injury and the FDA's affirmative statements of safety, the Plaintiffs seek damages against the bottle and formula manufacturers.  Plaintiffs contend that the bottle and formula manufacturers had a duty to inform the public of the difference in opinion among scientists regarding BPA (despite the FDA's review of the various studies and scientific determination that BPA is safe).  Plaintiffs have sought damages based upon misrepresentations, omissions, breach of express and implied warranty, breach of various state consumer deceptive practices acts, and unjust enrichment.  The bottle and formula manufacturers asked the court to dismiss the claims.  On November 9, the Court issued several opinions relating to these claims.  All of the claims against the formula manufacturers were dismissed based upon federal preemption.  The Court also dismissed a large number of the claims against the bottle manufacturers, including all of the claims relating to alleged misrepresentations and express warranties.  However, there are still some claims remaining in this lawsuit, including claims of unjust enrichment and, with respect to some potential plaintiffs, claims for omissions, breach of implied warranty, and violation of state consumer deceptive practices acts.  At this time, the bottle manufacturers have asked the Court to reconsider some parts of its opinion.   For now, the parties have been directed by the Court to move forward with discovery and other aspects of this litigation. 

Separately, there have been several lawsuits filed against companies that sold bottles which they advertised as BPA-free.  Allegedly, testing of these products found trace amounts of BPA in the products.  These lawsuits have only just begun and no rulings have yet been made by the Court.  There is a motion pending by attorneys for some plaintiffs asking that these cases be transferred to Judge Ortrie D. Smith so that they may become part of the current MDL related to BPA.  This decision will be made by the Judicial Panel on Multidistrict Litigation, which does not meet until January 2010. 

Also, the FDA is currently reviewing its position regarding BPA but, as of today, has not yet released its updated assessment or findings.  Previously, FDA had announced that the updated assessment would be completed by November 30 and, at that time, FDA would announce its findings.   No new dates have been provided by the FDA for the completion of this work.

Ice Miller continues to be actively involved in this litigation and is monitoring the related federal and scientific determinations of this matter.

For additional background or information on this issue, please contact Ice Miller partner, Judy Okenfuss.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.