BILL ANALYSIS SB 797 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2009-2010 Regular Session BILL NO: SB 797 AUTHOR: Pavley and Liu AMENDED: As Introduced FISCAL: No HEARING DATE: April 20, 2009 URGENCY: No CONSULTANT: Caroll Mortensen SUBJECT : PRODUCT SAFETY: BISPHENOL - A SUMMARY : Existing law : 1)Requires, under the Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known as Proposition 65) the Governor to revise and publish a list of chemicals that have been scientifically proven to cause cancer or reproductive toxicity each year. 2)Prohibits any person in the course of doing business in California from knowingly exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning, nor can such chemicals be discharged into the drinking water. 3)Prohibits the sale of toys that are contaminated with toxic substances. 4)Prohibits the manufacture, processing, and distribution in products containing certain chemicals found to raise health risks, including polybrominated diphenyl ethers and phthalates. 5)Requires the Department of Toxic Substances Control (DTSC), by January 1, 2011, to adopt regulations to establish a process to identify and prioritize chemicals or chemical ingredients in consumer products that may be considered a "chemical of concern," in accordance with a review process, SB 797 Page 2 as specified. 6)Requires DTSC, on or before January 1, 2011, to adopt regulations to establish a process to evaluate chemicals of concern, and their potential alternatives, in consumer products in order to determine how best to limit exposure or to reduce the level of hazard posed by a chemical of concern, as specified. This bill : 1) Prohibits the manufacture, sale or distribution in commerce of any bottle or cup, intended to be used to consume foods, beverages or liquids by children under the age of three, and contains more than 0.1 parts per billion (ppb) of Bisphenol-A (BPA). 2) Prohibits the manufacture, sale or distribution in commerce of any liquid, food, or beverage, intended primarily for consumption by children under the age of three, in a can or jar that contains more than 0.1 ppb of BPA 3) Excludes from #2 above food and beverage containers intended primarily to contain liquid, food or beverages for consumption by the general population. 4) Requires manufacturers to use the least toxic alternative when replacing BPA in a container in accordance with this chapter. 5) Prohibits manufacturers from replacing BPA with cancer-causing chemicals and reproductive toxicants, as specified. 6) Makes findings and declaration regarding BPA COMMENTS : 1) Purpose of Bill . According to the authors, millions of babies and toddlers in California are being exposed daily to the harmful toxin BPA. This hormone-disrupting chemical can be found in baby bottles, food and beverage containers and formula containers and is leaching into their food and SB 797 Page 3 drink. While some manufacturers have already removed this substance from their products, it is still found in a wide variety of products. The authors state that this bill will help protect children from this dangerous chemical by banning the use of BPA in children's feeding containers. 2) What is BPA? BPA is used as a primary monomer in polycarbonate plastic and epoxy resins. It is also used as an antioxidant in plasticizers and as a polymerization inhibitor in PVC. Polycarbonates are widely used in many consumer products, from sunglasses and compact discs to water and food containers and shatter-resistant baby bottles. Some polymers epoxy resins containing BPA are popular coatings for the inside of cans used for food. Although disputed, BPA has been shown to have hormone disrupting effects, and some mice studies have shown that it can produce hyperactivity, faster growth in females and earlier onset of puberty. 3) Exposure Pathways . According to the US National Toxicology Program (NTP), the primary source of exposure to bisphenol A for most people is through diet. While air, dust, and water are other possible sources of exposure, BPA in food and beverages accounts for the majority of daily human exposure. BPA can migrate into food from food and beverage containers with internal epoxy resin coatings and from consumer products made of polycarbonate plastic such as baby bottles, tableware, food containers, and water bottles. BPA can also be found in breast milk and dental sealants or composites. Workers may be exposed during the manufacture of BPA and BPA-containing products. Biomonitoring studies show that human exposure to BPA is widespread. In 2004, the Centers for Disease Control and Prevention (CDC) found detectable levels of BPA in 93 percent of 2517 urine samples from people six years and older (the study did not include children younger than six). The NTP study shows that the highest estimated daily intakes of BPA in the general population occur in infants and children. 4) Health Effects of BPA . There has been extensive, and often controversial, research on the health effects of BPA. There has been great debate over scope, content, funding SB 797 Page 4 and other factors of the studies that are cited by stakeholders on both sides of the debate. Even the federal Food and Drug Administration has faced issues regarding the science on the issue. The FDA has maintained that BPA is safe, relying largely on two studies that were funded by the chemical industry. In October, the agency was faulted by its own panel of independent science advisers, who said the FDA's position on BPA was scientifically flawed. As a result, the agency is revisiting its position on the chemical. For example, in October 2008 the federal Food and Drug Administration's Advisory Science Board found that the FDA safety assessment "overlooks a wide range of potentially serious findings" and demanded that the agency more carefully assess risks to children. However, what is surfacing is the trend toward caution regarding BPA, especially exposure to infants and children. One of the more recent efforts was done by NTP and finalized in September 2008. The NTP declared that it is concerned about the impact of BPA on the brain development, behavior and the male reproductive system for infants and children. The NTP states that there is scientific evidence to support the following conclusions. That there is: Some concern for neural and behavioral effects in fetuses, infants, and children at current human exposures. Some concern for BPA exposure in these same populations based on effects in the prostate gland, mammary gland, and an earlier age for puberty in females. Negligible concern that exposure of pregnant women to BPA will result in fetal or neonatal mortality, birth defects, or reduced birth weight and growth in their offspring. Negligible concern that exposure to BPA causes reproductive effects in non-occupationally exposed adults. Minimal concern for workers exposed to higher levels SB 797 Page 5 in occupational settings. 5) Trends in the use of BPA . With the decades of study of BPA and its effects on human and environmental health, the trend in the science is to recommend removing or restricting BPA in products intended for use by children. Manufacturers and retailers are following suit, for example, in March 2009, Connecticut Attorney General Richard Blumenthal, joined by the attorneys general in Connecticut and New Jersey, wrote to the bottle makers and asked them to voluntarily stop using BPA, six agreed: Gerber Avent America, Inc Evenflo Co. Disney First Years Dr. Brown Playtex Products, Inc. Many other manufacturers and retailers are moving away from BPA in children's products. 1) Green Chemistry Initiative . Last year, SB 509 (Simitian) and AB 1879 (Feuer) were passed by the Legislature and signed by the Governor. Together, these bills set forth the foundation for California's Green Chemistry Initiative. The measures direct state agencies to develop a process for identifying chemicals of concern and to construct procedures to assess what should be done about management of these chemicals of concern. They also require the creation of an online database of information about chemical hazards. This Initiative should, with adequate resources and leadership in the coming years, yield a process to address the identification and management of chemicals of concern that pose public health and environmental threats. However, this process is in its developmental stages, and BPA, as well as many other chemicals and compounds such as certain flame retardants, heavy metals, and others, are currently under review by other state and federal agencies, as well as by public health and environmental groups. The establishment of the Initiative should not preclude the SB 797 Page 6 Legislature from acting on threats to public health and safety if warranted. 2) Related Legislation . a) 2009 Legislative Session: Senators Migden and Perata authored SB 1713 that proposed to limit the amounts of BPA and phthalates in products intended for use by children. This bill failed passage on the Assembly floor. b) Federal Legislation: Two bills introduced at federal level S 593 (Feinstein) and HR 1523 (Markey) were introduced to ban BPA in all food containers, not just those intended for children. c) Other States: 18 States have introduced bills this year, not including California, to in some way restrict the use of BPA. 8) Additional Considerations . To the end of helping ensure the safety of potential alternatives to BPA, it is critical to help identify substitutes that do not pose similar or other health and environmental hazards as those being replaced. A list of endpoints that go beyond just carcinogenetic and reproduction toxicity including immune system, neurological and neurodevelopment effects and endocrine disruption, among others. Looking at the hazard traits of substitutes is critical. Consideration should be given to requiring manufacturers to evaluate the hazard traits of potential substitutes to BPA. 9) Double Referral to Health Committee . Should this measure be approved by this committee, the do pass motion must include the action to re-refer the bill to the Senate Committee on Health. SOURCE : Environmental Working Group SUPPORT : Breast Cancer Fund California League of Conservation Voters California Nurses Association California WIC (Women, Infants, Children) Association SB 797 Page 7 Clean Water Action Commonweal Consumer Federation of California Consumers Union Environment California MOMS (Making our Milk Safe) Physicians for Social Responsibility Planned Parenthood Affiliates of California Planning and Conservation League San Diego Coastkeeper Service Employees International Union Sierra Club California Women's Foundation of California Zero Breast Cancer OPPOSITION : American Chemistry Council California Grocers Association Civil Justice Association of California