The FDA finally released its report on Bisphenol A. The good news is that the FDA now admits that BPA — the endocrine-disrupting, heart disease–causing ingredient in plastic food packaging and can linings — isn’t entirely safe (contradicting the agency’s statement from 2008 that it was), particularly for infants and children. The bad news? There’s not much the agency can do about it. Here are the immediate, limited steps the FDA feels it can take “to reduce human exposure to BPA in the food supply”:

  • support the industry’s actions to stop producing BPA-containing baby bottles and infant feeding cups for the U.S. market;
  • facilitate the development of alternatives to BPA for the linings of infant formula cans;
  • and support efforts to replace BPA or minimize BPA levels in other food can linings.

In short, BPA can continue to be legally used until further notice, even in baby bottles, and certainly in food and drink can linings. Not exactly the outcome some of us were hoping for. Oh, but don’t worry, the FDA assures us that more studies are forthcoming — as if we don’t have enough data already.

And buried in the report summary is an excuse admission from the FDA that, in essence, its hands are tied:

Current BPA food contact uses were approved under food additive regulations issued more than 40 years ago.  This regulatory structure limits the oversight and flexibility of FDA.  Once a food additive is approved, any manufacturer of food or food packaging may use the food additive in accordance with the regulation.  There is no requirement to notify FDA of that use. For example, today there exist hundreds of different formulations for BPA-containing epoxy linings, which have varying characteristics.  As currently regulated, manufacturers are not required to disclose to FDA the existence or nature of these formulations.  Furthermore, if FDA were to decide to revoke one or more approved uses, FDA would need to undertake what could be a lengthy process of rulemaking to accomplish this goal.

Rulemaking, remember, can take years to complete — even a ban wouldn’t be immediate, the agency claims. There’s a different, more appropriate, law with different requirements — the Food Contact Notification Program of 2000 — that the FDA would like to use to regulate BPA. But to do so, companies would need to re-submit BPA for approval. The FDA “will encourage manufacturers to voluntarily submit a food contact notification” for BPA which would then give the agency more leeway to regulate it. Industry has been so helpful to this point what with their authoring of the 2008 safety statement and their attempt to recruit a pregnant woman as a spokesperson for their endocrine-disrupting product that I’m sure they’ll oblige. Further, the agency is concerned that a rush to replace BPA with another chemical might have unintended consequences. And if the history of BPA is any guide, the FDA is probably right that industry can’t exactly be trusted to get it right the second time.

Read a certain way, this report is a bureaucratic cry for help — Congress, after all, can solve this problem with a wave of the President’s pen by passing the Senate’s Feinstein-Schumer bill that would set a strict timeline for ending the use of BPA in food packaging. Alternately, someone could attach a rider to an unrelated bill requiring all companies using BPA to submit it for review under the 2000 food contact notification law.

The takeaway here is that the FDA doesn’t think they really have the authority to ban BPA or even to meaningfully restrict its use. This is another symptom of the attenuated, outdated legal regime that the government must use to protect us from the witch’s brew of industrial chemicals in which we bubble. It seems that only Congress can provide the antidote.