Friday, March 7, 2014
AUGUSTA — Gov. Paul LePage's proposed repeal of Maine's efforts to restrict bisphenol A, a chemical that state health agencies concluded poses a health risk to babies, will likely test his ability to pass controversial measures, even though Republicans control the Legislature.
The proposal, submitted as part of the Republican's regulatory reform package, has generated a firestorm of criticism from the public — even before the governor made national headlines for saying that the worst case impact of the hormone-disrupting chemical would result in some women getting "little beards."
No state senators and only nine state representatives opposed the 2008 passage of the rules regulating BPA, which were part of LD 2048, a law known as the Kid-Safe Products Act. The law set up an extensive process for the Department of Environmental Protection and the Maine Center for Disease Control and Prevention to identify "priority chemicals," based on sufficient scientific evidence that they exposed children to health risks.
"The intent was to, like bisphenol A, look for and identify certain types of chemicals that were the lead ones that we might know wouldn't be safe and to try to remove them out of products," said Rep. Dana Dow, R-Waldoboro.
Dow, along with then-Rep. Hannah Pingree, D-North Haven, participated in a study that tested what chemicals were found in their bodies. The results surprised both, and the two lawmakers, along with several others, co-sponsored legislation that became the Kid-Safe Product Act.
BPA and nonylphenol were the first two — and so far, the only — chemicals identified by the state agencies as being dangerous enough to warrant regulation. In addition to both the DEP and Maine CDC needing to review available scientific evidence and agree on which chemicals should be regulated, the Board of Environmental Protection was also required to hold public hearings on the proposals. The BEP, which is a 10-member volunteer citizen board of gubernatorial appointees, also issued the final rules regulating the identified chemicals.
Finally, any recommendations for regulations — such as the proposed ban on BPA in sippy cups and bottles — that are considered to be substantive rule changes, must be approved by the Legislature. As such, lawmakers will vote on the BPA ban legislation, LD 412, later this session.
LePage's initial proposal for regulatory reforms, part of his top priorities as governor to eliminate red tape and make Maine more business-friendly, included the recommendation to "repeal BPA rule and rely on federal EPA and FDA standards." A subsequent list of proposals presented to the legislative panel charged with writing the legislation did not contain the BPA repeal. But when asked at a recent news conference if that meant he was backing off, LePage said no.
"Until I see science that tells me BPA is a problem and I haven't seen it — quite frankly, the science that I'm looking at says there's not been any science identifying that there's a problem," he said. "The only thing that I've heard is if you take a plastic bottle and you put it in a microwave and then heat it up, it gives off a chemical that's similar to estrogen."
But Republican lawmakers as well as advocacy groups argue that there's plenty of science indicating real risks posed to infants by BPA.
"I think we are going to try to see if we can just pull that completely out of any consideration so it won't go any further," said Dow, referring to LePage's BPA repeal proposal.
All three members of Senate Republican leadership were in the Senate during the 2008 unanimous vote on the Kid-Safe Product legislation, and Senate Majority Leader Jon Courtney, R-Sanford, said he still supports the process established by the measure.
"It was a pretty strong 35 to nothing report in the Senate, so I think that speaks for itself," he said. "I don't think people are going to backtrack unless there's a legitimate scientific reason why we need to look differently. I think we certainly supported this ban when it came in and I think that we'll certainly take a look at it, but I think there was pretty strong support for the law."
Other parts of the BPA rule changes that were established last year have already taken effect. One requires manufacturers of toys that contain intentionally-added BPA to disclose that information to the state -- something that has been met with strong resistance from the Toy Industry Association, a national trade group for toy manufacturers.
"What it really boils down to is trying to find a reasonable rule that's implementable and doesn't put small companies out of business with having to test and test and test to document that they are in compliance with the law," said Andy Hackman, a spokesman for TIA.
Hackman said his group — which represents about 30 toy manufacturers in Maine — is seeking reforms to the law, not complete repeal.
"Despite some of the perception out there, we have not sought for a wholesale rollback of the BPA rule," he said.
Ann Robinson, a partner at the law firm Preti Flaherty, is registered to lobby on the Toy Industry Association's behalf and is also LePage's lead adviser on regulatory reform. The governor's original list of proposals that was posted online was marked with the law firm's document tracking numbers in the lower right hand corner and a LePage spokesman confirmed Robinson's role in compiling the recommendations.
Bruce Gerrity, another Preti Flaherty lawyer registered to lobby for the toy group, said he had communicated with LePage's office that he is not seeking total repeal of the BPA rules, but does support reforming the underlying Kid-Safe Product Act.
"(It) really fails primarily to look at chemicals from a de minimus exposure perspective, that's one of the biggest concerns we have," he said. "You should not have to — and it's inappropriate — to regulate a chemical in a context where it has so minor an effect that you could better devote resources elsewhere."
Mike Belliveau, executive director of the Environmental Health Strategy Center, a nonprofit group that works to promote safe chemicals, said it's ridiculous for LePage to say he hasn't seen science condemning BPA.
"If the governor puts on a blindfold, he's not going to see anything — so if he refuses to look at the science that Maine's toxicologists have reviewed or the science the United States government has reviewed, he's not going to see the hundreds of studies that show that BPA causes adverse effects at the same levels that babies are being exposed to today," he said.
Belliveau was also critical of an e-mail circulated this week by Dan Demeritt, LePage's spokesman, with the subject line, "World agrees with Gov. LePage on BPA."
The email contained links to studies conducted by the World Health Organization and by the European Food Safety Authority, and highlighted by the Statistical Assessment Service
The Washington, D.C.-based Statistical Assessment Service, a nonprofit, nonpartisan organization, has been affiliated with George Mason University since 2004. The group does not disclose funding sources, but claims on its website not to take money from industry or industry-related groups.
Major donors to GMU, however, include Charles G. Koch Charitable Foundation and Searle Freedom Trust, both of which spend millions annually supporting right-wing ideological interests, according to SourceWatch, a Wikipedia-like website devoted to exposing front groups "trying to manipulate public opinion on behalf of corporations or government."
"It's part of an actual, deliberate strategy by the chemical manufacturers to what's called to 'manufacture doubt'; this comes from the tobacco industry playbook," Belliveau said.
Tobacco companies funded studies, he said, just like the chemical industry has done on BPA, so they could use them to sway public opinion.
Demeritt said the reports were evidence of a lack of scientific consensus on the effects of BPA.
"Before reporting that the entire scientific community supports a ban, please look at these reports from the World Health Organization and the European Food Safety Authority," Demeritt wrote in the e-mail.
Pingree, the former House speaker, said she's optimistic that the BPA rules will withstand the scrutiny.
"I got the sense that ... that legislators on both sides of the aisle, when they really heard the facts that this is targeted toward only these baby products and that we'd be the ninth state at least to do this, it might be more of a no-brainer than is being portrayed," she said. "I don't know why the governor is picking such a fight on this because it seems like a good, slam-dunk, common sense issue for both parties."