Bisphenol A, used in the manufacturing of baby bottles, baby formula, and other plastic containers is starting to be a losing factor for producers. Dozens of lawsuits have already been filed.
From plastics news.com, “More than 25 lawsuits, which seek class action status, were consolidated last year as multidistrict litigation No. 1967 in U.S. District Court in Kansas City, Mo. The lawsuits accuse manufacturers of knowing that BPA is harmful, particularly to infants and children, and failing to warn consumers. They seek economic damages — return of their purchase price for millions of baby bottles and other food containers — as well as punitive damages.
According to court papers, defendants in the multidistrict litigation are Avent America Inc., a division of Phillips Electronics North America Corp.; Handi-Craft Co.; Evenflo Co. Inc.; Gerber Products Co.; Playtex Products Inc.; New Wave Enviro Products; Nalge Nunc International Corp.; and RC2 Corp.
Attorneys and brokers said they know of no BPA suits that allege the products caused bodily injury. Although animal studies have raised concerns that BPA, which mimics estrogen, is harmful to human development and may be tied to cancer and other diseases, plaintiff attorneys chose not to allege personal injury.
“The allegations [in the proposed class actions] are designed to avoid the problems in certifying personal injury claims,” said Brent Austin, a partner at Wildman, Harrold, Allen & Dixon LLP in Chicago, who is not involved in the litigation.
The price of millions of baby bottles and defense costs “are an incentive for plaintiff attorneys,” said Michael Vanselow, a partner at Oppenheimer Wolff & Donnelly LLP in Minneapolis, who also is not involved in the litigation.
BPA has been used in consumer products for almost 50 years, and the U.S. Food and Drug Administration has said it is safe. But in April 2008, two reports appeared that raised “a perfect storm” of alarm that resulted in numerous lawsuits as well as regulatory and legislative activity, said Leonard Kurfirst, also a partner with Wildman, Harrold, Allen & Dixon LLP in Chicago. In one report, the National Institutes of Health’s National Toxicology Program expressed concern about neurological, behavioral and other effects of BPA on fetuses, infants and children. That same month, Health Canada took steps to ban the use of BPA in baby bottles and infant formula cans.
FDA then initiated a review of BPA safety and has said it is targeting Nov. 30 as the date it will announce its position.
Because the class actions do not allege bodily injury, they “may have brought manufacturers into an uninsurable situation,” said Vanselow.
Neither commercial general liability insurance nor product liability insurance would provide coverage unless a suit alleges bodily injury, experts said.
