Reformed Chemical Safety Law Doesn’t Eliminate Need for Public Vigilance

First update in 40 years to key law regulating chemicals in the US greeted with cautious optimism

At a White House ceremony yesterday, President Obama signed into law legislation updating the United States’ main chemical safety law for the first time in 40 years. The new law revises the Toxics Substances Control Act (TSCA), which gives the Environmental Protection Agency (EPA) authority to regulate the tens of thousands of chemicals used commercially in the US.

view of a child's legs and a plastic toy she's draggingPhoto by soikkoratamo/FlickrThe new Toxic Substances Control Act will not interfere with state-level chemical regulations or actions that were in place as of April 22, 2016, inclding laws in Massachusetts and New York state laws that have been instrumental in limiting hazardous chemicals in toys.

The Frank R. Lautenberg Chemical Safety for the 21st Century Act – as the new TSCA law is formally called to honor the late Senator Frank Lautenberg who championed its cause — was years in the making and is designed to enable the EPA to better protect Americans from exposure to hazardous chemicals – including many used in consumer products.

“So this is a really significant piece of business,” Obama said at the signing ceremony.

“Here in America, folks should have the confidence to know that the laundry detergent we buy isn’t going to make us sick, the mattresses our babies sleep on aren’t going to harm them.” He pointed out that the law would “make it easier for the EPA to review chemicals already on the market, as well as the new chemicals our scientists and our businesses design.”

Approved overwhelmingly by Congress and with bipartisan support, (there were only 12 nay votes – about half of those from Democrats who wanted a stronger bill) the bill is being welcomed by the chemical industry and environmental groups alike. While a number of environmental advocates are withholding full support — citing their wish for a bill more protective of public health — even they consider this an important step forward.

Yet questions remain about how effectively the EPA will actually be able to act under the reformed TSCA, particularly given the enormous number of chemicals already out there that lack safety data.

What the old TSCA didn’t do

When it was passed and signed into law in 1976 by President Gerald Ford, TSCA was seen — along with the other landmark environment laws passed in the 1970s — as a significant step toward reducing Americans’ exposure to toxic chemicals. But in the years since, it’s been widely considered to be ineffective in regulating the more than 80,000 chemicals in commercial use in the US.

One major flaw was that TSCA allowed some 62,000 chemicals on the market at the time the law was passed to continue to be used without safety testing or full toxicity data. It also allowed chemical manufacturers to claim safety data as trade secrets, creating serious obstacles in obtaining information needed to protect humans and the environment from hazardous exposures.

It also set what many consider to be an impossibly high bar for the EPA to clear before declaring a chemical hazardous enough to ban or take off the market. The oft-cited example is asbestos. Despite extensive and well-recognized evidence of its acute toxicity, the EPA was not able to use TSCA to fully bar the use of asbestos in the US. And in the 40 years since TSCA went into effect, EPA has reviewed only a very small fraction of the chemicals TSCA regulates and has only managed to bar the use of a handful of them. And many of these toxic chemicals aren’t fully banned (think PCBs that are still allowed to be present in some products).

Despite the huge inventory of chemicals it regulates, there are many other categories of chemicals that TSCA does not cover. Among these are pesticides, drugs, and chemicals used in food, food packaging, personal care products, and cosmetics. Chemicals used in these products are regulated by other federal laws. Or as Scott Faber Environmental Working Group’s senior vice president for government affairs put it: “None of the chemicals you put on or in your body are covered by this law.”

What makes this potentially confusing is that there are chemicals that may be regulated by both the EPA (under TSCA) when they’re used in certain products and by the Food and Drug Administration (FDA) when they’re used in cosmetics or food packaging. For example, the EPA regulates the use of bisphenol A (BPA) when it’s used as a coating for many paper cash register and ATM receipts . But the FDA regulates BPA when it’s used in food packaging and food containers. Another would be the plasticizers known as phthalates that are often used in vinyl. The EPA regulates phthalates used in vinyl flooring, while the FDA takes over when they are used in toiletries and cosmetics.

The new TSCA bill will not change any or this or how the FDA regulates chemicals under its jurisdiction.

“We may know more about chemicals regulated by both EPA and FDA [under the new TSCA] “but [for example,] nothing in this law will require the FDA to use its authority to regulate perchlorate in food packaging,” Faber explains. 

What the new TSCA will do

Among the new provisions in TSCA are requirements that the EPA start flagging potentially toxic chemicals as high priority for safety testing, beginning with 10 in the next six months. These may include both new and existing chemicals, including some from the 62,000 that were allowed to continue being used without testing in 1976.

Environmental Defense Fund senior scientist Richard Denison points out that the EPA will also be required explicitly “to look at what are now called conditions of use.” This means the agency’s safety review of a chemical will have to consider all the ways chemical exposure could occur throughout the lifecycle of a product containing that chemical — during the manufacturing process, during finished product use, and during disposal. “A lot of that was in theory true under the old law. Now it’s expressly true and extends to exposure through food and water,” Denison says.

The new law will also limit how manufacturers can claim chemical information as trade secrets, something key for access to information in case of emergencies or exposure that causes harm to human health or the environment. The EPA will also have deadlines by which it must complete chemical evaluations, something that didn’t exist before. In the past, many chemical reviews have dragged on for decades, leaving harmful products on store shelves, such as paint-removers containing methylene chloride – a highly toxic chemical that’s caused numerous deaths in recent years. “It can’t be overstated how important those deadlines are,” Denison says.

The challenge, as Denison, Faber and others note, is that much of what the EPA can do under the new TSCA will depend on its budget and on how future administrations decide to use the law. And in the current political climate, with Republican majorities in the House and Senate wanting to cut EPA funding, the resources that will be made available to the agency remain an open question.

While Denison is optimistic about the power of the new bill’s deadlines for chemical reviews, others are less so.

“The timeline is incredibly slow,” says Ansje Miller, Eastern states director of the Center for Environmental Health. “Even when they get up to speed they will be reviewing 20 chemicals a year,” she says. “The EPA itself said it thinks there are a thousand chemicals that are risky enough to deserve more scrutiny. At that pace, we will be lucky if our children see the end of that.”

Other open questions about the new TSCA law include how it will work with existing state chemical laws. In the absence of federal action actually restricting chemical use under the old law, many states have been busy enacting laws of their own, such as ones that bar the use of hazardous chemicals in children’s products. The new bill does limit when and how states can act in conjunction with the EPA’s work under TSCA. But as Miller points out, “States will continue to play an important role.” As she explains, while states can’t act on chemicals that EPA is actively considering for regulation, given the number of other chemicals that are of health concern, it leaves plenty of room for state action.

The new TSCA will not interfere with state chemical regulations or actions that were in place as of April 22, 2016, including Massachusetts and New York state laws that have been instrumental in both reducing industrial use of toxic chemicals and in limiting hazardous chemicals in toys.

Neither will it interfere with California’s Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act.  Enacted in 1986, Prop 65 is intended to help Californians make informed decisions about protecting themselves from chemicals known to cause cancer, birth defects, or other reproductive harm. The law now regulates about 800 chemicals and has been influential in prompting many manufacturers to eliminate use of toxics regulated under that law. 

“There’s a whole range of products not covered by TSCA so there’s a ton of work the states can still do,” Miller says. It’s also important to remember that “no matter what the EPA is doing, there’s a continued role for consumers – putting pressure on manufacturers,” she adds. Such pressure has moved many hazardous chemicals out of consumer products far faster than legislation ever could. 

Overall, the bill is a compromise. But as President Obama noted, its passage is in itself remarkable. “I want the American people to know that this is proof that even in the current polarized political climate here in Washington, things can work,” Obama said yesterday morning. “If we can get this bill done, it means that somewhere out there on the horizon, we can make our politics less toxic as well.”

Miller voiced a sentiment echoed by many others watching the TSCA debate when she said: “I’m worried but cautiously optimistic that we’ll be able to get things done. What this really points to is that even though the bill is passed, we can’t just say everything is taken care of…. We need to remain vigilant.”

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