In Defense Of Nalgene

Consider this a bloggy amicus brief.

A California woman has sued Nalgene's manufacturer for downplaying risks of the chemical bisphenol-A. From Reuters:

The suit, filed in U.S. District Court in Sacramento, accuses Nalge Nunc of continuing to assert that BPA is safe long after dozens of studies linked the substance to hormone disruptions, infertility, early puberty, and cancer.

The lawsuit was brought by Lani Felix-Lozano, who said she bought the company's reusable beverage 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," attorney Harold Hewell, who represents Felix-Lozano, said.

The lawsuit does not describe any physical ailment suffered by the plaintiffs and seeks unspecified damages. [Link|Via]

Unless Felix-Lozano or her lawyer know something about Nalgene that the rest of the world doesn't, we think lawsuits like this are toxic to the process of reform.

Suing a company to force them to do something they have a moral imperative to do is one thing; we have been awaiting developments in the class-action lawsuit against Dr. Brown's, Gerber, Evenflo, Avent, and Playtex filed last year.

But suing a company like Nalgene after it has done that thing, while other companies continue to use a substance that could harm children, is another.

Nalgene hasn't admitted that BPA poses a risk to anyone, let alone the adult population their products primarily serve. Even if company officers did feel this way, they wouldn't dare admit it. But if being an early plastics reformer makes you a target for litigation, this may be a case in which negligence should go unpunished.

We don't support the position Nalgene has taken to this point; they have persisted in claiming that bisphenol-A is entirely safe despite mounting evidence to the contrary. But in deciding to eliminate BPA-containing polycarbonate products from their entire product line, we think they did the right thing at a time when other companies aren't.

At Z Recommends we have worked for a year now to encourage and pressure companies to reduce and eliminate their use of the potentially hazardous chemical based on the precautionary principle and public health considerations. We have done this because we think that getting BPA out of kids' products makes kids safer. For most of this time, pressure has mounted slowly, awareness has grown gradually, and credibility has been gained piece by piece as more experts have weighed in on the issue. Now, things are suddenly happening very quickly. For those just learning about the issue, it may look like companies are quick to respond to public outcry over their products. Trust us: Nothing could be further from the truth.

Nalgene is one of the last companies we thought we'd be defending, and our regular readers probably share our surprise. But think about it. Lawsuits such as this one - unless backed by disclosures of specific improprieties at the accused company (suppressing negative studies, for example, as Johnson & Johnson did with their contraceptive Ortho Evra patch) - slow the process of making the marketplace safer for infants and children, which is both tragic and ironic. Why ironic? Because this response simply reinforces the paternalistic, anti-reform attitude that has made this issue drag on as long as it has: A cynical belief that consumers are so reactionary that they can't be trusted to see their own interests when they're right in front of them.

We don't claim to understand where the law comes down on this sort of issue, and we reserve the right to change our opinion if we find out that Hewell has some interesting cards up his sleeve. But that's how things look from our vantage point.

What do you think? If the Nalgene case became a class-action lawsuit, would you join?

Photo by detritus, shared on Flickr.