Court Won’t Force FDA To Regulate BPA

A jurisdictional issue worked against the National Resources Defense Council’s (NRDC) effort to mandate that the U.S. Food and Drug Administration (FDA) limit the estrogenic polycarbonate chemical, <"">bisphenol A (BPA) in food additives, the New York Times reported. The three-judge United States Circuit Court of Appeals in the District of Columbia unanimously ruled against the NRDC’s effort, saying the case should be tried in district court.

The NRDC has long fought for tighter BPA regulations and this case is part of a larger legislative and legal move to limit BPA use, noted the New York Times. The case, said the Times, is linked to an NRDC citizen petition submitted to FDA on October 21, 2008, in which it petitioned the FDA to eliminate all mandates allowing BPA to be used as a food additive. The NRDC provided new scientific information pointing to the negative health effects of the controversial polycarbonate plastic chemical whose ubiquity continues to grow.

The FDA never responded to the petition, forcing the NRDC to file a case with the appeals court last June, said the Times. The action sought “an enforceable deadline” for the agency to either deny the petition or initiate new rulemaking, said the Times. According to the FDA, citizen petitions under the Food, Drug and Cosmetic Act are typically tried in district court and that the NRDC could have sought an Administrative Procedure Act claim in district court for the “unreasonable” delay, said the Times, which said the court agreed.

Judge Judith Rogers, writing on behalf of Judges Karen LeCraft Henderson and Brett Kavanaugh, said that “Because the NRDC cannot show that jurisdiction over its citizen petition lies exclusively in this court, or that all final FDA action on its petition would be directly and exclusively reviewable in this court … we dismiss the petition for lack of jurisdiction,” quoted the Times.

The highly prevalent chemical is present in a constantly growing range of consumer products that include baby bottles and sippy cups, eyeglass, CD and DVD cases, windshields, can liners, and water bottles, to name just a few. We recently wrote that the toxic chemical was found in ordinary thermal paper receipts—further intensifying its ubiquity—and presents a danger to aquatic health due to its presence in nautical paints. BPA’s presence in can liners has long been known and remains a point of contention for consumer advocates and experts reporting on the risks of the chemical’s infiltration into our food chain.

Acting as an anti-androgen—a substance that blocks hormone activity—and mimicking the hormone estrogen, BPA affects sexual development and processes, especially in developing fetuses, infants, and children.

Despite growing concern over the negative impact of BPA on health and the environment; a massive number of scientific, peer-reviewed studies; and unprecedented public support for increased regulation concerning this toxic chemical, Congress has long continued to act on the side of industry in the case of BPA. As a matter-of-fact, Congress has long relied on the results of two studies that found BPA safe at current usage levels. Of note, and what is rarely explained when these studies are mentioned, is that both studies were conducted by industry, an issue of concern for the scientific community, consumer and environmental advocates, and consumers. A number of entities, states, and countries have implemented bans and restrictions on BPA in certain products.

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