Congress Poised to Revise Law Regulating Chemicals Used in Commercial Products

If you think every chemical used in every consumer product on our store shelves has been tested and deemed safe, think again. If you think current laws in the United States explicitly prohibit the use of some of the most hazardous chemicals, such as asbestos, in consumer products, think again.

Last week, new test reports released by the Environmental Working Group Action Fund found asbestos in children’s crayons. This is alarming, given that even small amounts of asbestos exposure can cause serious and even fatal lung disease. What may be even more disturbing is that asbestos’ presence in these crayons is not explicitly prohibited by the Toxic Substances Control Act (TSCA), the primary law that regulates chemicals used commercially in the US.

The US Environmental Protection Agency has been struggling to regulate the more than 84,000 chemicals now registered for commerce in the US using this nearly 40-year-old act that hasn’t been updated since it was signed into law in 1976 by President Gerald Ford. Now, after almost six years of wrangling, Congress is poised to act on legislation to reform TSCA. The House has passed its TSCA reform bill (H.R. 2576) and the Senate is expected to vote on its bill (S. 697) perhaps even before Congress breaks for its August recess.

Everyone – from the EPA to environmental health advocates to chemical industry representatives – agrees that TSCA is outdated and ineffective and badly in need of revision. There is also wide agreement that there’s enough momentum behind the issue to make it very likely that the two bills will be voted on before Labor Day and sent to the president’s desk this year.

Yet whether these bills will ensure meaningful improvement in how the US manages chemicals continues to be a matter of considerable debate among those who’ve been watching this process closely. Before wading into the weeds it’s worth stepping back to ask what TSCA does, does not do and what changes the House and Senate bills propose.

The most basic thing that TSCA does is require that the EPA keep a current list of all chemicals used commercially in the US. That list, known as the TSCA Inventory, now includes more than 84,000 chemicals, but it does not include pesticides, pharmaceuticals, or chemicals used in food, cosmetics and personal care products. Other laws regulate those.

TSCA does not, however, require that the listed chemicals be tested for a full range of environmental and human health effects before they’re put into use. While TSCA does require manufacturers to submit certain information on new chemicals to the EPA, there are some 60,000 chemicals that were in use at the time TSCA was enacted that were allowed to continue being used without any additional safety testing or review. This has meant that these chemicals – that include some of those most widely used such as bipshenol A (BPA), formaldehyde, many flame retardants and plasticizers – have been assumed to be safe, even though we don’t know whether they are so or not.

Under TSCA the EPA has been reviewing chemicals – assessing their safety and issuing what it considers “safe” exposure levels. But this process has been extremely slow, with some individual chemical evaluations taking decades to complete. In those instances when a chemical’s use has actually been restricted or discontinued, it’s often been under voluntary agreements with manufacturers or because the chemical is no longer in use.

Complicating and further limiting what we know about chemicals on the TSCA inventory is the fact that TSCA allows manufacturers to claim some information submitted to the EPA – including the chemical’s identity – as a trade secret.

While TSCA does include some restrictions and even bans on some uses of hazardous chemicals, including PCBs (polychlorinated biphenyls) and lead, it makes it very difficult to actually restrict the use of chemicals found to be hazardous after they’re on the market. To do so – or even to require testing of a chemical already in use – whoever (EPA included) claims the chemical is harmful must present evidence of that harm. Not only is the level of such proof TSCA requires extremely high, but the law also requires that risk of harm be reduced in the way that’s “least burdensome” to the chemical manufacturer.

Asbestos is perhaps the prime example of how hard TSCA makes it for the EPA to completely prohibit a chemical’s use. While TSCA does bar some uses of asbestos – in certain insulation products – it does not keep them out of all products, including those like children’s crayons that may contain talc contaminated with asbestos, an issue about which federal health authorities have been aware since 2000.

“These toys are an example of a failed system in which voluntary action by industry doesn’t completely clean up products in the market,” says EWG senior analyst, Sonya Lunder and co-author of the asbestos-in-crayons report.

“Since 1976, TSCA has failed to protect Americans from asbestos and thousands of other chemicals,” Asbestos Disease Awareness Organization president and CEO, Linda Reinstein told EIJ via email. “The time is now for Congress to pass real TSCA reform that ensures the EPA can expeditiously review and take action to ban asbestos. Enough is enough.”

So what are the House and Senate proposing and will it be “real” TSCA reform?

Both bills largely concur on what needs fixing in TSCA, but how effectively they do so depends on who you ask.

Among the big ticket items being tackled by both bills are – the pace of the EPA’s chemical assessments and how the EPA prioritizes chemicals for safety review; how TSCA handles companies’ confidential business information or trade secrets claims; amending TSCA’s “least burdensome” requirement on chemical restrictions and its definition of chemicals that may pose an “unreasonable risk” of harmful exposure. The other extremely big-ticket item on the table is how a revised TSCA will work with state and other local level chemical regulations.

This last issue is huge since in the absence of effective federal regulation on chemicals, states have been busy filling in the gaps. There are now some 172 individual laws regulating chemicals in about 35 states and an additional 100-plus similar bills have been under consideration in 28 states this year. These regulations range from laws restricting specific uses of individual chemicals to ones – such as those in Maine and Washington that require manufacturers to report on use of scores of potentially hazardous chemicals used in children’s products, or California’s Proposition 65 that sets limits on and requires businesses to warn the public about possible exposure to carcinogens, reproductive and developmental toxins.

Whether in California, with its enormous economy, or in a small state like Maine, these state laws are having a huge influence on the consumer marketplace, in many cases prompting manufacturers to change product formulations even without any federal restrictions.

The Senate bill, sponsored by Democrat Senator Tom Udall and Republican Senator David Vitter, now has nearly 50 co-sponsors (a nearly equal mix of Democrats and Republicans). It also has the support of a large coalition of business groups, including the American Chemistry Council, US Chamber of Commerce, Consumer Electronics Association and CropLife America. Others supporting the bill include the National Wildlife Federation, March of Dimes and the Humane Society of the United States.

“From our perspective the Senate bill is a much stronger package, having been negotiated for a longer period of time,” says Environmental Defense Fund senior scientist Richard Denison. The House bill, Denison says, “is more piecemeal and from our perspective that’s a problem because it leaves out major areas of TSCA. The Senate bill has tackled those in a more comprehensive way.”

Safer Chemicals, Healthy Families, a coalition of more than 450 environmental, health and consumer advocacy groups across the country, is endorsing neither bill but prefers the House approach, which is now being supported by the National Governors Association, National Conference of State Legislatures and the Environmental Council of States. The House bill “needs fewer tweaks to make modest reforms,” says Tony Iallonardo, Safer Chemicals, Healthy Families communications director.

Both EDF and Safer Chemicals, Healthy Families have released side-by-side comparisons of the two bills. A close read of both the legislation and the comparisons suggests that the devil is indeed in the details and that anyone hoping to see state chemicals laws continue unimpeded by TSCA as they are now, will be disappointed.

Some critics, like Scott Faber, EWG senior vice-president for government affairs, say that both bills fall short of what’s needed.

“Ordinary people expect that chemicals, especially the most dangerous chemicals, have been reviewed by a government agency and are shocked,” that they are not, Faber told EIJ. The legislation now under consideration “won’t change that,” he said. His big concern: that neither bill will require the EPA to act quickly enough on reviewing and potentially restricting use of the most dangerous chemicals, including asbestos.

Perhaps the big take-away is that even if new legislation gets adopted, it’s not going to lead to an overnight change in the way potentially toxic chemicals are regulated in this country.

“It’s going to take time to deal with this problem,” Denison says. But, he says, “it’s important that we get started… on shifting away from this system puts all of the onus on EPA to find harm.”