On December 17, 2020, Dan Fisk, Chairman and President of the Atlantic Legal Foundation, submitted to the California Supreme Court a letter requesting “depublication” of a California Court of Appeal opinion that rejected an industry challenge to the listing of bisphenol A (“BPA”) as a reproductive toxicant under the California Safe Drinking Water and Toxic Enforcement Act of 1986, a notorious “right-to-know” law commonly known as “Proposition 65.” Once a chemical is added to the Proposition 65 reproductive toxicants list, California businesses are required to warn workers and the public that the chemical is “known to the State” to cause birth defects or other reproductive harm.
The Atlantic Legal Foundation long has advocated for use of sound science in judicial and regulatory proceedings. California’s branding of BPA as a Proposition 65 chemical that causes birth defects or other reproductive harm in humans is contrary to the carefully considered scientific findings of federal and California panels of experts.
BPA is a chemical that has been widely used in connection with the manufacture of food and beverage packaging and containers. The Foundation’s depublication request letter explains that the California Office of Environmental Health Hazard Assessment (“OEHHA”) added BPA to the list of Proposition 65 chemicals “known to the State” to cause reproductive toxicity based on a National Toxicology Program report that expressly stated there is “insufficient evidence” to conclude that BPA causes reproductive toxicity in humans. OEHHA also ignored the determination of its own panel of scientific experts (the Developmental and Reproductive Toxicant Identification Committee (“DART-IC”)) that BPA should not be listed as a Proposition 65 human reproductive toxicant.
The American Chemistry Council had challenged the Proposition 65 listing of BPA in a California state trial court. The court held that OEHHA did not abuse its discretion when listing BPA, and a three-judge panel of the California Court of Appeal (Third Appellate District) affirmed. A copy of the Court of Appeal opinion, which that Court designated for publication, can be accessed here. (The opinion was subsequently modified to correct several typographical errors).
Under the California Rules of Court, any person can request that a published Court of Appeal opinion be “depublished,” thereby removing its precedential authority.
ALF’s depublication request was prepared with the assistance of Advisory Council member John M. Kalas and his colleague Samarth Barot of Hollingsworth LLP in Washington D.C., along with ALF Senior Vice President and General Counsel Lawrence S. Ebner. Advisory Council member Ana Tagvoryan of Blank Rome LLP in Los Angeles assisted with filing and service of the depublication request.
Unfortunately, the California Supreme Court denied the depublication request on January 27, 2021.