• First Statewide Ban of BPA in Children's Products Adopted in Minnesota; Others May Follow
  • June 11, 2009
  • Law Firm: Keller and Heckman LLP - Washington Office
  • Minnesota became the first state to pass a bisphenol A (BPA) ban when Governor Tim Pawlenty signed legislation on May 7, 2009 that prohibits the sale of children's products that contain BPA. The legislation defines a "children's product" as "an empty bottle or cup to be filled with food or liquid that is designed or intended by a manufacturer to be used by a child." A child is defined as a person under three years of age.

    The Minnesota Senate passed the BPA ban on a bipartisan vote of 53-3 on April 30 and the Minnesota House passed the ban on May 5 by a vote of 126-5. The Act bans manufacturers and wholesalers from selling children's products that contain BPA after January 1, 2010, retailers are banned from selling these products after January 1, 2011. The official law will be published during the summer of 2009 on the Minnesota State Website.

    Other States Consider BPA Bans

    More than 20 other states have introduced legislation to ban BPA in various products. One of the most comprehensive bans has been proposed in Connecticut. HB-6572 would ban the sale of reusable food or beverage container containing BPA, in addition to banning the sale of any infant formula or baby food that is stored in a plastic container, jar, or can that contains BPA. These bans would become effective October 1, 2011. The bill also requires a warning statement on the label of any food product sold in a jar or can containing BPA. The Connecticut House of Representatives passed the bill on April 29. The bill has moved to the state senate. (Information on the status of HB-6572 can be found here.)

    In California, the "Toxin-free Toddlers and Babies Act," (SB 797) was introduced February 27, 2009 by State Senators Fran Pavley and Carol Liu. SB 797 would ban BPA at a level of 0.1 part per billion or greater in food and beverage containers specifically designed for children three years or younger. The Senate Environmental Quality Committee pass the bill on April 20, 2009 by a 5-2 vote, and the State Senate Health Committee passed it on April 29 by a 6-2 vote. The bill is now before the full senate.

    The New York State Assembly approved a BPA ban on May 5, 2009. In a 133-12 vote, the assembly passed A6919b, also know as the "Bisphenol A-free children and babies act." This bill would prohibit the sale of any toy, child care product, or beverage container containing BPA intended for use by a child under the age of three. The ban on BPA in child care products such as baby bottles and cups would begin December 1, 2010, toys containing BPA would be banned beginning December 1, 2011, and food/beverage containers containing BPA would be banned beginning December 1, 2012.

    The New York State Senate is now considering S3206c, which is the same as A6919b. These bills would also preempt municipalities from adopting local laws to regulate BPA in products for children three and under.

    New York's Suffolk County Adopts Ban

    The first local BPA ban will become law in Suffolk County, New York, 90 days after it is officially filed with the Secretary of State's office. The ban, signed by Suffolk Executive Steve Levy on April 2, 2009, prohibits the sale of children's beverage containers containing BPA in the county. "Children's beverage containers" is defined as any bottle, cup, cup lid, straw, or other container intended to be used by children under the age of three for the consumption of liquids. A $500 fine will be imposed for the first offense and a $1,000 fine for subsequent violations. Last March, after the Suffolk County Legislature unanimously voted in favor of the ban, the county health commissioner, Humayun Chaudrhy, said that the county would enforce the ban by relying on consumer complaints.

    Proposed Federal BPA Ban Would Impact All Resin Suppliers

    On the federal level, Senator Charles Schumer (D-NY) introduced legislation to ban BPA on March 31, 2009 that would impact all manufacturers of plastic food containers and their plastic resin suppliers. Schumer's bill, S.753, also known as the "BPA-Free Kids Act of 2009," would ban the use of BPA in utensils and containers sold empty that are intended to be filled with liquid, food, or beverages intended for use by children age three and younger. The bill would treat plastic children's food and beverage containers (metal cans are exempted) containing BPA as a banned hazardous substance under the Federal Hazardous Substances Act (FHSA), and would give jurisdiction for enforcement to the Consumer products Safety Commission (CPSC). The bill also establishes criminal and civil penalties for violations.

    S.753 mandates testing and certification by all resin suppliers whose customers use plastic resins to manufacture food and beverage containers intended for use by children, not just suppliers that manufacturer polycarbonate resins. Both suppliers of plastic resins sold for use in the manufacture of children's food and beverage containers, and manufacturers of those product would be required to test the plastic resin and certify that it is BPA-free. In addition, CPSC would be required to establish its own random testing program to ensure compliance. The bill also mandates that these containers or their packaging be labeled, "Compliant with BPA-Free Kids Act 2009."

    The bill explicitly does not preempt state or local laws relating to regulation of products containing BPA. The bill also clarifies that it would not affect any enforcement action or liability of any person under state laws.