BILL ANALYSIS Ó AB 1319 Page 1 Date of Hearing: May 3, 2011 ASSEMBLY COMMITTEE ON HEALTH William W. Monning, Chair AB 1319 (Butler) - As Amended: April 28, 2011 SUBJECT : Product safety: bisphenol A. SUMMARY : Enacts the Toxin-Free Infants and Toddlers Act and prohibits the sale, manufacture, or distribution of a bottle, cup, liquid, baby food, formula, or beverage that contains bisphenol A (BPA), as specified, if it is primarily intended for children three years of age or younger. Specifically, this bill : 1)Prohibits, effective July 1, 2013, the sale, manufacture, or distribution of any bottle or cup that contains BPA, at a level above 0.1 parts per billion (ppb), if it is designed for, or intended to be filled with a liquid, food, or beverage intended primarily for consumption by, children three years of age or younger. 2)Prohibits, effective July 1, 2013, the manufacture, sale, or distribution of a liquid, baby food, formula, or beverage containing BPA, at a level above 0.1 ppb, if it is intended primarily for consumption children three years of age or younger. Requires that the maximum amount of BPA permitted be based on the likely concentration of the infant formula, liquid, baby food, or beverage that will be consumed. 3)Defines "baby food" to mean a prepared solid food consisting of a soft paste that is intended primarily for consumption by children three years of age or younger and that is commercially available. 4)Exempts from the above prohibitions medical devices and food and beverage containers designed or intended primarily to contain liquid, food, or beverages for consumption by the general population. AB 1319 Page 2 5)Requires the provisions of this bill, if the Department of Toxic Substances Control (DTSC) takes regulatory action regarding the use of BPA under its Green Chemistry Initiative for an item in 1) or 2) above, to cease to be implemented with respect to that item upon the date that DTSC posts a notice on its Internet Website that it has adopted the response. Prohibits this bill from being construed to prohibit or restrict the authority of DTSC to adopt regulations to limit exposure to or reduce the level of hazard posed by BPA. 6)Requires manufacturers to use the least toxic alternative when replacing BPA in containers in accordance with this bill. Prohibits manufacturers from replacing BPA, pursuant to this bill, with carcinogens or reproductive toxins identified by the United States Environmental Protection Agency (EPA) or the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) list of chemicals known to cause cancer or reproductive toxicity. 7)Makes a number of findings and declarations related to BPA, its pervasiveness in humans and the environment, and its health effects. EXISTING LAW : 1)Prohibits the sale, manufacture, or distribution in commerce of toys, child care articles, or products that can be placed in a child's mouth that contain phthalates in concentrations exceeding 0.1%. Defines "child care article" as all products designed or intended by the manufacturer to facilitate sleep, relaxation, or the feeding of children, or to help children with sucking or teething. Requires manufacturers to use the least toxic alternative when replacing phthalates in products. 2)Prohibits the manufacture, sale, and distribution of toys that are contaminated with any toxic substance. 3)Requires DTSC, to adopt regulations by January 1, 2011, to identify and prioritize chemicals of concern, to evaluate alternatives, and to specify regulatory responses to limit exposure or to reduce the level of hazard posed by a chemical of concern found in consumer products. AB 1319 Page 3 4)Requires DTSC to establish an online, public Toxics Information Clearinghouse that includes science-based information on the toxicity and hazard traits of chemicals used in daily life. 5)Under Proposition 65: a) Requires the Governor to publish a list of chemicals known to cause cancer or reproductive toxicity, and to annually revise the list; and, b) 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. 6)Under the Toxic Substances Control Act of 1976, authorizes EPA to track industrial chemicals produced or imported into the United States. 7)Add lead and cadmium in children's jewelry prohibitions. FISCAL EFFECT : This bill has not been analyzed by a fiscal committee. COMMENTS : 1)PURPOSE OF THIS BILL . According to the author, this bill is a child safety measure that seeks to protect infants and toddlers from a harmful toxin that leaches into babies' milk and food. While most consumers believe that everyday products are tested for dangerous chemicals and determined to be safe by government authorities, the reality is many children's products contain toxic chemicals, such as BPA, that have been shown to cause harm to children's health and the environment. BPA has been linked to a number of long-term health impacts such as birth defects, reproductive harm, impaired learning, hyperactivity, and breast and prostate cancer. The author states that regulation of BPA in children's products is woefully inadequate and has not kept pace with the explosion of government funded peer-reviewed studies in the last few years, which indicate that BPA leaches into food and beverage products and is toxic at even extremely low doses. The author states that while she fully supports the Green Chemistry Initiative, she believes BPA poses a clear and present danger AB 1319 Page 4 and it may be several years before the Initiative is implemented and regulatory reform will not occur fast enough to protect children against a health risk that is well known and where alternative products are available. 2)EXPOSURE TO BPA . According to the National Toxicology Program (NTP) Draft Brief, diet is the primary source of exposure to BPA for most people, although air, dust, and water (including skin contact) are also possible sources of exposure. According to the NTP, BPA can migrate into food from containers with internal epoxy resin coatings and from polycarbonate plastic products such as baby bottles, tableware, food containers, and water bottles. The degree to which BPA migrates from polycarbonate containers into liquid appears to depend more on the temperature of the liquid than the age of the container; higher temperatures cause more migration. Short-term exposure can occur following application of certain dental sealants or composites made with BPA-derived material. Workers may also be exposed during the manufacture of BPA and BPA-containing products. The Environmental Working Group (EWG), a nonprofit research organization and sponsor of this bill, found that almost all infant formula cans are lined with an epoxy that contains BPA. BPA is also found in breast milk. According to the NTP Draft Brief, the highest estimated daily intakes of BPA in the general population occur in infants and children because, relative to their size, they eat, drink, and breathe more than adults. The U.S. Centers for Disease Control and Prevention (found detectable levels of BPA in 93% of a large, representative sample of people six years and older. People with the lowest household incomes had higher levels of BPA than people in the highest income bracket. The NTP Draft Brief cited estimates that formula-fed infants younger than six months and infants six to 12 months had much higher intake levels of BPA than breast-fed infants less than six months of age and adults in the general population, due to polycarbonate formula bottles, epoxy formula can linings, canned foods, and polycarbonate tableware. EWG estimates that one in 16 infants fed liquid, ready-to-eat formula would be exposed to the chemicals at doses exceeding those that caused harm in laboratory studies. Baby's Toxic Bottle, a February 2008 report released by a coalition of U.S. and Canadian public health and environment groups, concluded that the amount of leaching from heated baby bottles is within the AB 1319 Page 5 range to cause harm in animals and is therefore a health concern for infants. 3)HEALTH EFFECTS OF BPA . NTP states that it is difficult to draw conclusions about developmental or reproductive effects of BPA from human studies due to factors such as lack of variation in exposure, small sample size, cross-sectional design, or lack of adjustment for potential confounders. However, a group of scientists convened by the National Institutes of Health Ýdiscussed in 5) below] concluded that animal studies of BPA should be considered a valid indicator of potential harm to humans. Developmental Effects . NTP finds that there is some concern for neural and behavioral effects in fetuses, infants, and children at current human exposures to BPA. NTP also has some concern for effects in the prostate gland, mammary gland, and an earlier age for puberty in females associated with BPA exposure to fetuses, infants, and children. Also, NTP did not find sufficient evidence to rule out the possibility that BPA exposure is associated with obesity and diabetes, earlier puberty in females, decreased sperm production and motility, and abnormal sperm formation associated with infertility. Reproductive Effects . NTP concluded that several human studies, including one in occupationally exposed male workers, collectively suggest hormonal effects of BPA exposure in adults. Examples of hormonal effects of BPA include increased testosterone in men and women, polycystic ovary syndrome, recurrent miscarriages, and chromosomal defects in fetuses. Also, in laboratory animals, developmental exposure to BPA at doses comparable to human exposures appear to cause changes that may increase risk of breast cancer later in life. NTP expressed 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. NTP has negligible concern that nonoccupational exposure to BPA has reproductive effects and minimal concern that occupational exposures to BPA cause reproductive harm. 4)CHAPEL HILL CONSENSUS STATEMENT . In November 2006, the National Institutes of Health convened in Chapel Hill, North Carolina, an international group of scientists with expertise in BPA to critically examine the relevance of the large body AB 1319 Page 6 of ecological, in vitro, and laboratory animal studies for assessing risks to human health. The group issued the Chapel Hill Consensus Statement, which included only findings with which all members of the topic-specific workgroups concurred. According to the Consensus Statement, the group was confident of the following: a) BPA exposure induces similar effects in reproductive systems in wildlife as in laboratory experiments; b) Responses in a variety of species are qualitatively consistent with controlled laboratory studies of BPA, and are predictive of similar effects in humans; c) Metabolic studies in rats suggest that current human exposures are comparable to those in laboratory animal studies; d) Exposure to BPA in concentrations within range of those observed in human fetal blood produced multiple adverse outcomes in fetal mice; e) Sensitivity to endocrine disruptors varies extensively with life stage; f) BPA in low doses alters genes and results in persistent effects that are expressed later in life; and, g) Low doses of BPA in adulthood can have neurobehavioral and reproductive effects. The Chapel Hill Group concluded that the wide range of adverse effects of low doses of BPA in laboratory animals exposed during development and adulthood gives great cause for concern with regard to the potential for similar adverse effects in humans. They further argued that the effects seen in experimental animals exposed to BPA relate to recent trends in human diseases, such as increases in prostate and breast cancer, uro-genital defects in male babies, decline in semen quality, early onset of puberty in girls, and metabolic disorders such as type 2 diabetes and obesity, and neurobehavioral problems. The group also stated that there is extensive evidence that outcomes may not become apparent until long after BPA exposure occurs. 5)GREEN CHEMISTRY INITIATIVE . According to the final report of the California Green Chemistry Initiative, green chemistry focuses on environmental protection at the design and manufacturing stages of product production. It intends to address chemicals before they become hazards, with the goal of making chemicals and products "benign by design." Green chemistry seeks to reduce the toxicity of chemicals in the AB 1319 Page 7 first place, rather than merely manage their toxic waste after use and disposal. In 2007, DTSC launched the California Green Chemistry Initiative, and in December 2008, released six policy recommendations for establishing a comprehensive Green Chemistry program in California. Governor Schwarzenegger signed two of the six recommendations into law: AB 1879 (Feuer and Huffman), Chapter 559, Statutes of 2008, requires DTSC to adopt regulations by January 1, 2011 to identify and prioritize chemicals of concern, to evaluate alternatives, and to specify regulatory responses where chemicals of concern are found in consumer products. SB 509 (Simitian), Chapter 560, Statutes of 2008, requires DTSC to establish an online, public Toxics Information Clearinghouse that includes science-based information on the toxicity and hazard traits of chemicals used in daily life. DTSC completed a two-year process of stakeholder and public involvement and issued the draft regulation on June 23, 2010. The Proposed Regulation was submitted to state Office of Administrative Law (OAL) September of 2010 and includes changes made as a result of that consultation. The Green Chemistry Proposed Regulation for Safer Consumer Products were submitted to the state OAL to begin the official rulemaking process. In December 2010, the California Office of Environmental Health Hazard Assessment (OEHHA) released its proposed regulations that seek to implement the mandate of SB 509 and identify four general categories of hazard traits: Toxicological Hazard Traits; Environmental Hazard Traits; Exposure Potential Hazard Traits; and, Physical Hazard Traits. 6)INFORMATIONAL HEARINGS . In January 2006, the Assembly Environmental Safety and Toxic Materials Committee and Assembly Health Committee held a joint informational hearing on the health effects of phthalates and BPA on children. During the hearing, the manufacturers and industries that use phthalates and BPA in children's products claimed that levels at which people are exposed pose no risk. A leading researcher on the effects of BPA showed the similarities between effects of low doses of BPA on laboratory animals and human health trends, such as prostate disease, obesity, decreased sperm counts, early puberty in females, and hyperactivity. The researcher also showed that industry-funded studies show no health effects of BPA exposure, while government-funded studies generally show AB 1319 Page 8 effects. The researcher showed that low doses, not high doses, of BPA stimulate proliferation of human prostate cancer cells, and that elevated levels of BPA in the blood are associated with recurrent miscarriages, obesity, and polycystic ovarian disease. In February 2009, August 2010, and February 2011, the Assembly Committees on Environmental Safety and Toxic Materials, Health, and Natural Resources held oversight hearings on the Green Chemistry Initiative. Representatives from DTSC and OEHHA reported on their progress in implementing Green Chemistry. 7)FEDERAL ACTIONS CONCERNING BPA . January 2010, the federal Food and Drug Administration (FDA) announced that on the basis of results from recent studies using novel approaches to test for subtle effects, both the National Toxicology Program at the National Institutes of Health and FDA have some concern about the potential effects of BPA on the brain, behavior, and prostate gland in fetuses, infants, and young children. The FDA stated that it would be carrying out in-depth studies to answer key questions and clarify uncertainties about the risks of BPA in cooperation with the National Toxicology Program, FDA's National Center for Toxicological Research. In March 2010 the EPA declared BPA a "chemical of concern" and later announced it would initiate collaborative alternatives assessment activities under its Design for the Environment (DfE) program to encourage reductions in BPA releases and exposures. This DfE environmental and health assessment is expected to be completed in the latter half of 2011. Additionally, EPA intends to initiate alternatives analyses for BPA used in foundry castings since foundries are accountable for large releases of BPA as reported under the Toxic Release Inventory, and for BPA-based materials lining water and waste water pipes since this application may have a potential for human and environmental exposure. Prior to this, there had been attempts in Congress to ban BPA. In 2009, U.S. Senators Dianne Feinstein and Chuck Schumer introduced S. 593 and Congressman Edward Markey introduced H.R. 1523 to establish a federal ban on BPA in all food and beverage containers. Congressman John Dingell also introduced the federal Food Safety Enhancement Act, H.R. 2749, which would have required the Secretary of the U.S. Department of Health and Human Services to examine the evidence concerning BPA. AB 1319 Page 9 8)OTHER GOVERNMENT ACTIONS RELATED TO BPA . In October 2008, the Canadian government announced that it would ban the use of BPA in baby bottles, and take measures to limit the release of BPA in the environment. In March 2009, Suffolk County, New York became the first place in the nation to enact a BPA ban. Minnesota also banned BPA in baby bottles and cups, and in June 2009 Connecticut acted to ban BPA in all children's feeding products, including formula cans, and the full range of reusable food and beverage containers. The European Food Safety Authority, however, and the United Kingdom Food Standards Agency recently reaffirmed their position that BPA is safe at a daily intake below 0.05 milligrams/kilogram of body weight. In August 2010, the Maine Board of Environmental Protection voted unanimously to ban the sale of baby bottles and other reusable food and beverage containers made with BPA as of January 2012. 9)BPA IN THE MARKETPLACE . Numerous manufacturers and retailers have decreased or halted sales of children's products containing BPA, and quickly increased the availability of BPA-free products. Wal-Mart announced in April 2008 that it would immediately halt sales of baby bottles, "sippy cups," pacifiers, food containers, and water bottles made with BPA in its Canadian stores, and that it would stop selling baby bottles made with BPA in its U.S. stores in early 2009. Toys "R" Us also announced it would stop selling baby bottles and other baby feeding products containing BPA by the end of 2008. Whole Foods stopped selling polycarbonate baby bottles and child drinking cups. Eden Foods has eliminated BPA in cans for some foods. According to the Milwaukee Journal Sentinel, gas and chemical maker Sunoco, citing uncertainty over the safety of BPA, announced in March that it will require its customers to guarantee that they will not use BPA in food and water containers for children under three years. 10)PREVIOUS LEGISLATION . SB 797 (Pavley) of 2009 and SB 1713 (Migden) of 2008 were substantially similar to this bill and contained a ban on the use of BPA in baby bottles and baby food containers. AB 797 failed passage on the Senate Floor and SB 1713 failed passage on the Assembly Floor. 11)DOUBLE REFERRAL . This bill was heard by the Assembly Environmental Safety and Toxic Materials Committee on April 26, 2011 and passed by a vote of 6-2. AB 1319 Page 10 12)TECHNICAL AMENDMENT . On page 4, beginning on line 28: (c) The maximum amount of bisphenol A allowed pursuant to subdivision (b) shall be based onthe likely concentration ofthe infant formula, liquid, baby food, or beveragethat willas it is intended or directed to be consumed. REGISTERED SUPPORT / OPPOSITION : Support Alliance of California Autism Organizations American Academy of Pediatrics American Congress of Obstetricians and Gynecologist (California) Asian Communities for Reproductive Justice Autism One Autism Research Institute Black Women for Wellness Breast Cancer Fund California League of Conservation Voters California Medical Association California Nurses Association California WIC Association Californians for a Healthy and Green Economy Center for Environmental Health Children Now Clean Water Action Commonweal Consumers Union County of Santa Clara East Yard Communities for Environmental Justice EcoMom Alliance Environment California Environmental Working Group First 5 LA Food & Water Watch Great Beginnings for Black Babies, Inc. Green to Grow Healthy Child Healthy World Making Our Milk Safe Moms Advocating Sustainability Natural Resources Defense Council Physicians for Social Responsibility Reproductive Justice Coalition of Los Angeles AB 1319 Page 11 San Francisco Department of Environment Senator Dianne Feinstein Sierra Club California Silicon Valley Toxics Coalition Solano County Board of Supervisors St. John's Well Child & Family Center (Los Angeles) Teens Turning Green US Autism & Asperger Association AB 1319 Page 12 Opposition AdvaMed - Advanced Medical Technology Association American Chemistry Council California Chamber of Commerce California Citizens Against Lawsuit Abuse California Grocers Association California Healthcare Institute California League of Food Processors California Manufacturers and Technology Association Can Manufacturers Institute Civil Justice Association of California Consumer Specialty Products Association Grocery Manufacturers Association Industrial Environmental Association International Formula Council Juvenile Products Manufacturers Association National Federation of Independent Business North American Metal Packaging Alliance, Inc. Analysis Prepared by : Melanie Moreno / HEALTH / (916) 319-2097