How Wal-Mart Became the New FDA

How Wal-Mart Became the New FDA

The plastics industry is dealing with a nightmare these days when it comes to potentially toxic chemicals. Because so many people no longer trust big business or federal regulators to protect them and their health—perhaps with reason, perhaps not—companies are vulnerable to campaigns by activist groups, politicians and trial lawyers who want to get alleged dangerous toxics off the market. The latest example: Bisphenol-A, the chemical used in polycarbonate bottles, including baby bottles, and in the linings of aluminum cans and in many, many other products.

I’ve spent a fair amount of time—more than I’d intended to—looking into the controversy around BPA. The result is a column that was posted today on and The FORTUNE websites is also running a video in which I talk about the issue. Originally, I had hoped that my research into BPA would develop into a much longer story for FORTUNE but the piece never really came together, in part because I found myself conflicted over the safety issues. Also, to be honest, it became clear to me that I don’t have the depth of experience reporting on the FDA or on toxic chemicals to write a definitive FORTUNE story about BPA.

Having said that, I’ve come to the conclusion that the BPA story is, in essence, about trust. It’s another bit of evidence to support my argument that it makes business sense in the long run for companies to be responsible and prudent, even if that costs them money today; regaining trust, once it’s been lost, is both terribly difficult and expensive. It also strikes me that industries that try to weaken government regulation or plant their own people inside regulatory agencies run the risk of getting burned in the end. That’s because when we lost trust in our regulators—as we seem to have lost faith in the FDA—we are left with mob rule, as manufacturers and retailers (i.e., Wal-Mart) come under pressure to stop making and selling perfectly legal products. Strong and predictable regulation, it seems to me, is better for business as well as for the rest of us than the chaos now surrounding BPA.

So feel free to look at the column which is a much abbreviated version of a longer draft that I will post below. Here’s how it begins:

How, exactly, did Wal-Mart become the new Food and Drug Administration?

The giant retailer, along with CVS and Toys ‘R Us, announced recently that it plans to stop selling baby bottles containing the chemical bisphenol-A.

The question is, why? Bisphenol-A has been widely used since the 1950s. The Food and Drug Administration, as well as Japanese and European regulators, have no problems with it. Canada is about to ban it from baby bottles, but officials term the move purely precautionary

And here, for those who want to know more, is my full story:

When did Wal-Mart become the new FDA?

The giant retailer, along with CVS and Toys ‘R Us, says it will stop selling baby bottles containing a controversial chemical called bisphenol-A. The California state Senate has voted to prohibit the use of BPA in children’s products. Nalgene, which makes water jugs, is phasing out BPA, too. And powerful Congressmen want BPA removed from cans of infant formula.

The question is, why? The FDA says bisphenol-A is perfectly safe. So do Japanese and European regulators, who tend to be more cautious. Even the government of Canada, which plans to ban the chemical from baby bottles, recently assured its citizens that this was done “as a precautionary measure.”

BPA, you should know, is everywhere. The chemical is used to make polycarbonate, a rigid, clear plastic used in bottles, bike helmets, CDs, DVDs and automobile headlights. It’s also used to make epoxy resins, which are used as coatings in food and drink cans as well as dental sealants. You’re probably carrying around some BPA right now: About 93% of Americans tested by the Centers for Disease Control had the chemical in their urine. About 6 billion pounds of chemical were made last year.

The trouble is, numerous studies of laboratory animals have linked small doses of BPA to breast cancers, prostate cancer, brain abnormalities and reproductive health problems. Other scientists argue that the chemical, which has been widely used since the 1950s, is perfectly safe. The fact is, there’s a good deal of scientific uncertainty about bisphenol-A. That’s not surprising, because we rely on animal studies to predict the effects of chemicals on humans, and extrapolating from mice to you and me isn’t easy.

But this story isn’t fundamentally about science. It’s about the politics of BPA. More broadly, it’s about how we, as a society, make decisions about health and safety, at a time when we no longer trust the government or industry to protect us. Because we’ve lost faith in those big institutions, battles over a slew of products and processes—genetically modified foods, the irradiation of meat, or phthalates in cosmetics or children’s toys—are being fought in the court of public opinion, for better or worse.

In the case of BPA, the market for hard-plastic baby and sport bottles collapsed suddenly this spring because of a hard-hitting campaign against the chemical by activist groups, concerned scientists, politicians, and trial lawyers. They spread fears about BPA that eventually convinced nervous retailers to turn away from children’s products containing the chemical. As an expert in crisis PR noted, wryly, “Wal-Mart is the new FDA.”

For companies that make chemicals or use them in consumer products, this is a real worry. It’s a whole lot easier to frighten people than it is to reassure them, especially when talking about kids. “The science can’t compete with the emotion,” says Steve Hentges, a chemist and a lobbyist with the American Chemistry Council, an industry group that lately has been on the losing end of the BPA battles.

If the most determined opponents of BPA get their way and drive the chemical out of the food supply, consumers will pay the costs. Some BPA-free plastic bottles sell for $10 each, more than twice the price of bottles with BPA. Baby bottles made of glass can break, potentially causing injury. Replacing BPA in the lining of aluminum cans would mean retooling all that packaging, and it’s not clear that there are safe alternatives.

Those costs are worth paying to protect our health, environmentalist say. They argue that if government regulators can’t or won’t do the job of regulating potentially toxic chemicals, then it makes perfect sense for advocacy groups, politicians, an aggressive media and even Wal-Mart to step in.

“The federal regulatory system for chemicals is broken,” declares Richard Liroff, the executive director of the Investor Environmental Health Network, a nonprofit that works with companies on issues of toxics. “We have largely incapacitated the government to make the kinds of decisions that we ought to be able to look to government to make. So there’s a lot to be said for having big companies slice through the knot and say we have to make decisions for our good, for our customers’ good and for the good of society.”

If nothing else, the BPA battles underscores how rapidly markets can by reshaped by activist campaigns and consumer sentiments, both magnified by the Internet. A handful of companies emerged as winners this spring: Whole Foods Market, which pulled BPA baby bottles and cups off its shelves several years ago; Eastman Chemical, which introduced a plastic alternative called Triton last year; and Born Free, a private company started in 2006 specifically to provide BPA-free baby bottles. Others, including SABIC Innovative Plastics, which was formerly the plastics division of GE and is now the U.S.’s biggest manufacturer of BPA, presumably saw sales decline. (SABIC declined to comment on the financial impact.) Baby-bottle makers including Avent America, Evenflo and Gerber Products are now being sued because they sold products made with BPA.

This spring’s BPA battles were fought like a political campaign, complete with catchy soundbites, press releases, personal attacks, and warring websites. One prominent and controversial crusader is Dr. Frederick vom Saal, who has been researching BPA for more than a decade. Vom Saal has testified before state legislatures and appeared on such TV programs as PBS’s Frontline and ABC’s 20/20 to denounce BPA in terms that gloss over scientific uncertainty. Referring to the fact that BPA is a mild estrogen, he says things like “the idea that you’re using sex hormones to make plastic is just totally insane.”

Vom Saal has contempt for the chemical industry. He accuses a Dow Chemical executive of trying to bribe him, a charge the company strongly denies. “The willingness to be dishonest seems to be the criteria for these people being hired and representing the chemical industry,” vom Saal says.

The chemical industry, in turn, wants to discredit vom Saal. One industry source showed FORTUNE a video news release produced by Born Free, which makes BPA-free baby products, in which vom Saal warns of the dangers of BPA. “We know it causes breast cancer and prostate cancer when exposure occurs in early life,” he declares. He also consulted with the New York-based law firm of Robert Weiss, which has filed three class action lawsuits against baby bottle manufacturers, according to the firm’s website.

Asked about this, vom Saal says he has not taken any money from any company or law firm, although he may testify as an expert witness, as many academics do, if the class-action suits against BPA go to trial. He notes—accurately—that it was only after lawyers brought civil actions against the tobacco industry and asbestos makers that we learned the full truth about the dangers of their products, and how the industries failed to protect the public health.

If vom Saal were the only scientist warning about the dangers of BPA, he could be marginalized. But dozens more are sounding alarms. Sarah Janssen, a scientist with the Natural Resources Defense Council, is a medical doctor with who a master’s in public health and a PhD in reproductive biology. She won’t let her 10-month-old daughter be exposed to BPA through baby bottles, sippy cups or infant formula. “For peace of mind,” she says. “really what we need is a comprehensive ban.”

Fenton Communications, a Washington, D.C. PR firm, is another key warrior against BPA. Fenton’s clients have included Born Free and its BPA-free bottles; an activist group called the Environmental Working Group that has led the fight against BPA for years; and trial lawyers. Fenton also works for liberal advocacy groups like MoveOn that support Democrats in Congress—New York Senators Charles Schumer and Hillary Clinton, among others—who have sponsored legislation to ban BPA from children’s products..

Sometimes these groups appear to work in concert. Last year, the Environmental Working Group tested canned foods for BPA and found that “many Americans are exposed to BPA above levels shown to be harmful in laboratory studies.” This year, a congressional investigation led by Reps. John Dingell and Bart Stupak asked manufacturers of infant formula (including Hain-Celestial Group Inc., Mead Johnson & Company, Nestle USA, Abbott and Wyeth Nutrition) to provide information on their use of BPA in the lining of cans. The companies said the linings did contain BPA (as everyone knew by then) and that the cans were safe to use. Nevertheless, Dingell and Stupak subsequently asked the infant formula companies to voluntarily remove BPA from their cans. They declined. All this generated headlines—and worry.

The chemical industry has tried to get its message out, too. See the websites and , which come up at the top of Google’s search offerings to offer a defense of BPA. But the industry is often depicted as a “special interest group,” while environmentalists and politicians are seen as serving the “public interest.” It isn’t that simple, of course. Controversy helps the green groups raise money, Democratic politicians look for ways to find fault with the Bush administration. And the trial lawyers sense a big payday.

The problem for the chemical industry is that its track record doesn’t inspire confidence. The Dingell-Stupak investigation of BPA looked at what the congressmen call “science for sale,” and uncovered embarrassing documents. One target: The Weinberg Group, a Washington, D.C., consulting firm that has made a business out of defending products that are under attack. (Its clients included the American Chemistry Council.) In a 2003 letter to DuPont, a Weinberg consultant wrote that, “We will harness … the scientific and intellectual capacity of our company with one goal in mind – creating the outcome our client desires.” Needless to say, this is not how science is supposed to work.

David Michaels is a George Washington University professor and the author of new book called Doubt is Their Product, about the misuse of science by industry. Corporate efforts to manipulate science and avoid regulation are now backfiring, he argues, because all science funded by industry has come under a cloud. “The work of mercenary scientists hurts the credibility of all scientists,” Michaels says.

This became a key element of the attack on BPA. When an FDA executive told Congress that the agency had relied on two industry-funded studies in its analysis of BPA, Dingell pounced. “This raises serious concerns about whether the science FDA relied on to approve the use of Bisphenol A was bought and paid for by industry,” he said. The problem is, the FDA does not have the money to conduct independent studies of the thousands of chemicals on the market. It has to rely on industry research. “It’s industry that’s required to do the testing, and then FDA reviews that,” says Hentges, of the chemistry industry group.

In April, all the news had turned bad for BPA. Media reports stoked fears. “There is no safe level of BPA,” declared Dr. Nancy Snyderman, an NBC medical reporter, on the Today show. (Maybe NBC is the new FDA?) The Canadian government recommended its ban on baby bottles with BPA. A lengthy draft report from the National Toxicology Program, a federal body that is part of the National Institutes of Health, found “some concern” about the effect of BPA on fetuses, infants and children at current exposure levels and concluded that “the possibility that bisphenol A may alter human development cannot be dismissed.” The NTP report is a model of clarity in the sea of uncertainty surrounding BPA. But it is too long and nuanced to be appreciated in the court of public opinion, where the BPA battle is being fought.

In the space of a few days, Wal-Mart, Toy ‘R Us and CVS said they will phase out baby bottles containing BPA. Nalgen and Playtex also said they will stop using the chemical.

I emailed Wal-Mart to ask why the company is removing a legal product, which may or may not be dangerous, from its shelves, while continuing to sell other products, like cigarettes, which are incontrovertibly harmful. Linda Brown Blakley, a company spokeswoman, replied: “We sell products our customers want to buy. Our customers are telling us they want this option.”

Now that the retailers have agreed to take baby bottles with BPA off their shelves, you can be sure they will come under pressure to get rid of infant formula cans lined with the chemical. Will cans of soup, soda and beer be next?

And is this any way to make judgments about public health?

“The market can’t solve this problem,” says David Michaels, the professor who has written extensively about science and regulation. (His website is “Wal-Mart and Target may stop selling the products, but I’ll bet you that the Dollar Store will keep selling them, just as they sold tainted toys from China.”

Hentges, the industry lobbyist, says: “You want qualified scientists making these decisions.” Well, sure, but qualified scientists disagree about BPA.

There’s an irony here. Traditionally, industries have opposed strong regulation. They don’t want the government looking over their shoulder or telling them what products they can and cannot sell. The BPA saga might be a reason for companies to rethink that position—because, at least in this case, the fact that the government regulators are perceived as weak or under-funded or too friendly to industry has helped create the nightmare the chemical industry is now living.