I 

111TH CONGRESS 

2D SESSION H. R. 4456 

To prohibit the manufacture, sale, or distribution in commerce of children’s 

food and beverage containers composed of bisphenol A, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 13, 2010 

Mr. WEINER introduced the following bill; which was referred to the 

Committee on Energy and Commerce 

A BILL 

To prohibit the manufacture, sale, or distribution in commerce of children’s food and beverage containers composed of bisphenol A, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘BPA–Free Kids Act 

5 of 2009’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) BISPHENOL A.—The term ‘‘bisphenol A’’ 

2 means the chemical compound phenol, 4,4–(1- 

3 methylethylidine)bis, propane (CAS No. 80–05–7). 

4 (2) CHILDREN’S FOOD OR BEVERAGE CON5 TAINER.— 

6 (A) IN GENERAL.—The term ‘‘children’s 

7 food or beverage container’’ means any bottle 

8 (including a baby bottle), cup, bowl, plate, 

9 straw, utensil, or other container, except a 

10 metal can, that is designed or intended to be 

11 filled with any liquid, food, or beverage pri12 marily for consumption from that container by 

13 children 3 years of age or younger and is sold 

14 or distributed at retail without containing any 

15 liquid, food, or beverage. 

16 (B) DETERMINATION OF INTENTION FOR

17 USE BY CHILDREN.—In determining under sub18 paragraph (A) whether a product is designed or 

19 intended for use by children 3 years of age or 

20 younger, the following factors shall be consid21 ered: 

22 (i) A statement by a manufacturer 

23 about the intended use of the product, in24 cluding a label on the product, if such 

25 statement is reasonable. 


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1 (ii) Whether the product is rep2 resented in its packaging, display, pro3 motion, or advertising as appropriate for 

4 children 3 years of age or younger. 

5 (iii) Whether the product is commonly 

6 recognized by consumers as being intended 

7 for use by children 3 years of age or 

8 younger. 

9 (iv) The Age Determination Guide10 lines issued by the Commission in Sep11 tember 2002 and any successor to such 

12 guidelines. 

13 (3) COMMISSION.—The term ‘‘Commission’’ 

14 means the Consumer Product Safety Commission. 

15 (4) METAL CAN.—The term ‘‘metal can’’ means 

16 a single-walled container that is manufactured from 

17 metal substrate designed to hold or pack food or 

18 beverages and sealed by can ends manufactured 

19 from metal substrate. 

20 (5) PLASTIC RESIN.—The term ‘‘plastic resin’’ 

21 means a polymer, usually in the form of pellets or 

22 beads, that is not yet molded, extruded, or cast into 

23 its final shape. 

24 (6) SOLD OR DISTRIBUTED AT RETAIL.—The 

25 term ‘‘sold or distributed at retail’’ means sold or 


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1 distributed to a consumer, but does not include sell2 ing activity that is intermittent. 

3 (7) SUPPLIER.—The term ‘‘supplier’’ means 

4 any person who supplies plastic resin to a manufac5 turer of children’s food or beverage containers and 

6 may include a manufacturer of plastic resins. 

7 SEC. 3. BAN ON CERTAIN PRODUCTS MADE WITH 

8 BISPHENOL A. 

9 (a) TREATMENT AS BANNED HAZARDOUS SUB10 STANCE.—Any children’s food or beverage container that 

11 is composed in whole or in part of bisphenol A shall be 

12 treated as a banned hazardous substance under the Fed13 eral Hazardous Substances Act (15 U.S.C. 1261 et seq.). 

14 (b) TREATMENT AS A REGULATION UNDER THE

15 FEDERAL HAZARDOUS SUBSTANCES ACT.—The ban im16 posed under subsection (a) and the requirements pre17 scribed under section 4(a)(1) shall be treated as regula18 tions of the Commission promulgated under or for the en19 forcement of section 2(q) of the Federal Hazardous Sub20 stances Act (15 U.S.C. 1261(q)), notwithstanding the ex21 ception for foods subject to the Federal Food, Drug, and 

22 Cosmetic Act (21 U.S.C. 301 et seq.) set forth in section 

23 2(f)(2) of the Federal Hazardous Substances Act (15 

24 U.S.C. 1261(f)(2)). 


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1 (c) CLARIFICATION OF AGENCY JURISDICTION.—The 

2 Consumer Product Safety Commission shall have jurisdic3 tion over and authority to enforce the provisions of this 

4 Act notwithstanding— 

5 (1) the exclusion of food from the definition of 

6 ‘‘consumer product’’ in section 3(a)(5)(I) of the 

7 Consumer Product Safety Act (15 U.S.C. 

8 2052(a)(5)(I)); 

9 (2) section 2(f)(2) of the Federal Hazardous 

10 Substances Act (15 U.S.C. 1261(f)(2)); 

11 (3) sections 201(s) and 409 of the Federal 

12 Food, Drug, and Cosmetic Act (21 U.S.C. 321(s) 

13 and 348) (regarding the Food and Drug Administra14 tion’s authority to regulate food contact surfaces as 

15 a food additive); 

16 (4) sections 402 and 403 of the Federal Food, 

17 Drug, and Cosmetic Act (21 U.S.C. 342 and 343) 

18 (prohibiting the introduction into interstate com19 merce of articles of food that are adulterated or mis20 branded); and 

21 (5) the Memorandum of Understanding between 

22 the U.S. Consumer Product Safety Commission and 

23 the U.S. Food and Drug Administration (MOU 

24 number 225–76–2003, signed July 1976), or any 

25 successor Memorandum (delineating the areas of juVerDate Nov 24 2008 02:28 Jan 14, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4456.IH H4456

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1 risdiction for administration of the Consumer Prod2 uct Safety Act and the Federal Food, Drug, and 

3 Cosmetic Act with respect to food, food containers, 

4 and food-related articles and equipment). 

5 SEC. 4. CERTIFICATION AND TESTING REQUIREMENTS. 

6 (a) TESTING REQUIREMENTS FOR PLASTIC RES7 INS.— 

8 (1) IN GENERAL.—Not later than 150 days 

9 after the date of the enactment of this Act, the 

10 Commission shall prescribe requirements for the 

11 testing of plastic resins by suppliers of plastic resin 

12 and by manufacturers of children’s food or beverage 

13 containers to ensure that the plastic resins that are 

14 to be sold, distributed for use, or used in the manu15 facture of children’s food or beverage containers do 

16 not contain bisphenol A. 

17 (2) REQUIREMENTS.—The testing requirements 

18 prescribed under paragraph (1) shall include the fol19 lowing: 

20 (A) A schedule for periodic and random 

21 testing of plastic resins, including consideration 

22 of whether it is reasonable to phase out testing 

23 requirements after a period of years. 

24 (B) Methodologies for— 

25 (i) testing plastic resins; and 


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1 (ii) determining appropriate sample 

2 sizes for testing plastic resins. 

3 (C) Standards for record keeping and sub4 mittal of test data and results to the Commis5 sion. 

6 (D) Requirements for public access to test 

7 data and test results. 

8 (E) Such other requirements as the Com9 mission considers appropriate for testing plastic 

10 resins. 

11 (b) CERTIFICATION REQUIREMENTS FOR SUPPLIERS

12 OF CERTAIN PLASTIC RESINS.—Not later than 30 days 

13 after the date the Commission prescribes the testing re14 quirements under subsection (a)(1), if a supplier of plastic 

15 resins provides plastic resin to a manufacturer that the 

16 supplier has reason to believe will use such plastic resin 

17 in the manufacture of children’s food or beverage con18 tainers, the supplier shall provide the manufacturer a cer19 tification that— 

20 (1) the plastic resin has been tested in accord21 ance with the requirements prescribed under sub22 section (a)(1); and 

23 (2) the plastic resin does not contain bisphenol 

24 A. 


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1 (c) TESTING REQUIREMENTS FOR MANUFACTURERS

2 OF CHILDREN’S FOOD OR BEVERAGE CONTAINERS.—Not 

3 later than 30 days after the date the Commission pre4 scribes requirements under subsection (a)(1), each manu5 facturer of children’s food or beverage containers shall im6 plement a testing program that meets the requirements 

7 prescribed under subsection (a)(1) to ensure that the plas8 tic resins used by such manufacturer do not contain 

9 bisphenol A. 

10 (d) EXCLUSION FROM PRODUCT CERTIFICATION

11 AND LABELING REQUIREMENTS OF CONSUMER PRODUCT

12 SAFETY ACT.—Section 14 of the Consumer Product Safe13 ty Act (15 U.S.C. 2063) shall not apply with respect to 

14 the presence of bisphenol A in children’s food or beverage 

15 containers. 

16 SEC. 5. LABELING AND ADVERTISING REQUIREMENTS. 

17 (a) LABELING.—Not later than 180 days after the 

18 date of the enactment of this Act, each children’s food or 

19 beverage container shall bear or contain the compliance 

20 statement described in subsection (b), on or attached to 

21 its packaging or the container itself, when sold or distrib22 uted at retail, if— 

23 (1) such children’s food or beverage container is 

24 composed in whole or in part of plastic resin; 


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1 (2) such plastic resin was certified under sub2 section (b) of section 4; 

3 (3) such plastic resin was tested under sub4 section (c) of such section; and 

5 (4) such children’s food or beverage container is 

6 not composed in whole or in part of bisphenol A. 

7 (b) COMPLIANCE STATEMENT.—The compliance 

8 statement described in this subsection is the following: 

9 ‘‘BPA–Free Product’’. 

10 (c) ADVERTISING.—Not later than the date that is 

11 180 days after the date of the enactment of this Act, any 

12 advertisement by a retailer, manufacturer, importer, dis13 tributor, or private labeler (including advertisements on 

14 Internet websites or in catalogues or other printed mate15 rials) that provides a direct means for the purchase or 

16 order of a children’s food or beverage container that bears 

17 or contains, pursuant to subsection (a), the compliance 

18 statement described in subsection (b) shall— 

19 (1) display the compliance statement described 

20 in subsection (b); or 

21 (2) be accompanied by such compliance state22 ment immediately adjacent to the advertisement. 

23 SEC. 6. ENFORCEMENT. 

24 (a) AUDITS OF SUPPLIERS AND MANUFACTURERS.— 

25 The Commission shall carry out random audits of the test 


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1 data submitted to the Commission by suppliers of plastic 

2 resins used in the manufacture of children’s food or bev3 erage containers and by manufacturers of children’s food 

4 or beverage containers to ensure that such suppliers and 

5 manufacturers are complying with the requirements of 

6 subsections (b) and (c) of section 4, respectively. 

7 (b) COMMISSION TESTING OF CHILDREN’S FOOD

8 AND BEVERAGE CONTAINERS.—The Commission shall 

9 carry out a program of random testing of children’s food 

10 and beverage containers to ensure that children’s food and 

11 beverage containers that are treated as banned hazardous 

12 substances under section 3(a) are not introduced into com13 merce. 

14 (c) REGULATIONS.—Not later than 150 days after 

15 the date of the enactment of this Act, the Commission 

16 shall prescribe regulations to carry out the provisions of 

17 subsections (a) and (b). 

18 (d) PENALTIES.—Any failure of a person subject to 

19 a requirement of section 3, 4, or 5 to comply with such 

20 requirement shall be treated as a violation of section 4 

21 of the Federal Hazardous Substances Act (15 U.S.C. 

22 1263) and subject to the penalties set forth in section 5 

23 of such Act (15 U.S.C. 1264). 

24 (e) REPORTS.—Not later than one year after the date 

25 of the enactment of this Act and annually thereafter, the 


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1 Commission shall submit to Congress a report on the ac2 tions taken by the Commission to enforce the provisions 

3 of this Act, including summaries of the following: 

4 (1) The audits carried out under subsection (a). 

5 (2) The results of the testing program carried 

6 out under subsection (b). 

7 (3) The criminal and civil penalties imposed 

8 under subsection (d). 

9 SEC. 7. EFFECT ON FEDERAL AND STATE LAW. 

10 (a) IN GENERAL.—Nothing in this Act or section 

11 18(b)(1)(B) of the Federal Hazardous Substances Act (15 

12 U.S.C. 1261 note) shall affect the authority of any State 

13 or political subdivision of a State to establish or continue 

14 in effect a provision of the law of a State or political sub15 division of a State relating to regulation of products con16 taining bisphenol A, except to the extent that compliance 

17 with both State and Federal law is impossible. Nothing 

18 in this section shall be construed to modify or affect any 

19 enforcement action or liability of any person under the law 

20 of any State. 

21 (b) PRESERVATION OF CERTAIN STATE LAW.—Noth22 ing in this Act shall be construed to preempt or otherwise 

23 affect any warning requirement relating to consumer prod24 ucts or substances that is established pursuant to State 

25 law that was in effect on August 31, 2003. 


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1 SEC. 8. RESEARCH ON HEALTH EFFECTS OF EXPOSURE TO 

2 BISPHENOL A. 

3 (a) RESEARCH PLAN REQUIRED.—Not later than 

4 180 days after the date of the enactment of this Act, the 

5 Secretary of Health and Human Services shall, acting 

6 through the Director of the National Institute of Environ7 mental Health Sciences, submit to Congress a plan for a 

8 five-year research initiative to increase understanding on 

9 the health effects of exposure to bisphenol A in all age 

10 groups and in pregnant women. 

11 (b) RESEARCH REQUIRED.—Not later than 1 year 

12 after the date of the enactment of this Act, the Secretary 

13 of Health and Human Services shall, acting through the 

14 Director of the National Institute of Environmental 

15 Health Sciences, commence the research initiative set 

16 forth in the plan required by subsection (a). 

17 (c) MANNER OF RESEARCH.—The research initiative 

18 required by subsection (b) may be conducted through in19 tramural research, contracts, grants, and cooperative 

20 agreements. 

21 (d) REPORTS TO CONGRESS.— 

22 (1) INTERIM REPORT.—Not later than 2 years 

23 after the date of the enactment of this Act, the Sec24 retary of Health and Human Services shall, acting 

25 through the Director of the National Institute of 

26 Environmental Health Sciences, submit to Congress 


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1 an interim report on the current status of the re2 search carried out under subsection (b), including a 

3 description of the results of such research. 

4 (2) FINAL REPORT.—Not later than 6 years 

5 after the date of the enactment of this Act, the Sec6 retary of Health and Human Services shall, acting 

7 through the Director of the National Institute of 

8 Environmental Health Sciences, submit to Congress 

9 a final report on the results of this initiative and the 

10 current state of science with respect to bisphenol A. 

11 (e) AUTHORIZATION OF APPROPRIATIONS.—There 

12 are authorized to be appropriated to the Secretary of 

13 Health and Human Services to carry out this section 

14 $5,000,000 for each of fiscal years 2010 through 2014. 

15 SEC. 9. EFFECTIVE DATE. 

16 This Act shall take effect on the date of the enact17 ment of this Act and apply with respect to children’s food 

18 or beverage containers manufactured on or after the date 

19 that is 180 days after such date of enactment. 

Æ 


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