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BPA-Laced Nalgene Bottles Spur Lawsuit

Apr 24, 2008 | Parker Waichman Alonso LLP

What is believed to be the first consumer class action suit over Bisphenol A—BPA—in consumer products has been filed against Nalge Nunc International Corporation.  Lani Felix-Lozano claims Nalge Nunc, knew, but minimized risks that BPA in its Nalgene sports bottles could leach into the bottles' contents and sicken consumers.  BPA is found in dental sealants, food and baby formula can liners, CDs and DVDs, eyeglasses, and hundreds of household goods.  Over 90 percent of Americans are exposed to BPA, according to the CDC and BPA has been found in the urine of 95% of Americans tested.

The suit, filed in U.S. District Court in Sacramento, accuses Nalge Nunc of continuing to state that BPA is safe despite dozens of studies linking BPA to hormone disruptions, infertility, early puberty, and cancer.  Felix-Lozano said she bought the company's reusable containers for herself and her two daughters, now ages 11 and 13, for several years.  "They address the issue of BPA in their bottles (on their Web site); they cite the (Food and Drug Administration) stating that they see no problem with it.  The problem is they didn't cite the many other studies that show there is a risk and there is a great concern about the issue," said Felix-Lozano’s attorney.

In response to increasing concerns about BPA, the FDA says there’s “no reason at this time to ban or otherwise restrict its use”; however, legislation has been proposed in several states to limit or ban BPA use and some stores have pulled polycarbonate bottles.  New Jersey lawmakers passed a bill to ban the sale of all BPA-containing products, Canada’s health agency is examining BPA health risks, a major Canadian retailer removed Nalgene and other polycarbonate plastic containers from shelves, and Canada proposed a BPA ban in baby bottles.  Also, Toys 'R' Us said it will phase out bottles and other "baby feeding products" containing BPA by year-end; Wal-Mart said it will stop selling baby bottles made with BPA by early next year; Nalgene said it will stop using BPA; and Playtex, which makes a variety of baby products, says it will stop using BPA.  Senator Charles Schumer, Democrat-N.Y., introduced legislation to ban BPA from all baby bottles.

The recent Canadian ban followed the National Toxicology Program—of the U.S. Department of Health and Human Services—statement it found "some concern" that low BPA levels cause changes in behavior; in the brain, prostate gland, and mammary gland; and the age at which girls enter puberty.  In the lab, BPA is linked to sex-hormone-imbalances, including breast and prostate cancer, early puberty, miscarriage, low sperm count, and immune-system changes.  The National Toxicology Program's Center for the Evaluation of Risks to Human Reproduction found BPA risk and exposure causes neural and behavioral effects in children.  A group of scientists from the Centers for Disease Control (CDC), the FDA, and the Institutes of Health (NIH) warned that very low doses of BPA cause profound effects on laboratory animals, particularly during pregnancy and infancy and that BPA can permanently rewire genetic programming before birth.  The federal National Toxicology Program said experiments on rats found precancerous tumors, urinary tract problems, and early puberty when animals were fed or injected with low BPA doses.