Industry Market Trends

Industry & Consumer Groups Clash Over Toxic Substances Control Act's Replacement

Jan 29, 2013


When it comes to chemicals and toxins, American industry is governed by the Toxic Substances Control Act (TSCA), an Environmental Protection Agency (EPA) relic from the Ford Administration. The TSCA has been able to mandate safety testing for only 200 of the 80,000 chemicals manufacturers use today, and has banned or restricted only five of those chemicals: polychlorinated biphenyl (PCBs), asbestos, radon, lead and chlorofluorocarbons.

Needless to say, the TSCA has been on everyone's mind recently, but no one's more than consumer groups, parents groups and even the U.S. Centers for Disease Control (CDC), which has reported that regular biomonitoring is finding hundreds of industrial chemicals of dubious safety in the bloodstream of most Americans, including newborn babies. Scientists call this "the body burden," and it's on the rise.

TSCA was passed in 1976 by Congress to regulate the introduction of new and existing chemicals and prohibit the manufacture or importation of chemicals that are not on the TSCA inventory. To be compliant, manufacturers must submit pre-manufacturing notification (PMN) to the EPA before manufacturing or importing new chemicals. The Act contains exemptions for research and development or for chemicals regulated under other statutes.

It sounds great, until you examine the details.

Companies submitting PMNs are not required to provide any safety information, so it becomes the EPA's job to engage in computer modeling to determine whether a new chemical poses risk. If the EPA doesn't take steps to block the new chemical within 90 days, it is by default given a green light. Given how underfunded the EPA is these days, it's not hard to imagine precisely how much scrutiny these new chemicals are given.

Escape by Calvin Klein contains phthalates, a substance known to be toxic but not regulated by current legislation. Credit: Calvin Klein. Escape by Calvin Klein contains phthalates, a substance known to be toxic but not regulated by current legislation. Credit: Calvin Klein.

Most stakeholders agree TSCA is no longer working, albeit for different reasons. Environmentalists and consumer advocates are troubled by the lack of attention the legislation gives Bisphenol A (BPA), a plastic additive that has been shown to be an endocrine distruptor; nonylphenols in laundry detergents, shampoo and other cleaning substances; perfluorinated chemicals in cleaning supplies and non-stick cookware, packaging and stain repellents; the flame retardant PBDE in clothing and furniture; and phthalates in vinyl, personal care products and artificial fragrances.

Even the EPA has heavily criticized the law it administers: the EPA called the bill "inconsistent" and said it "presents a minimal presence" that is "predisposed to protect industry information rather than to provide public access to health and safety studies."

To attempt to overhaul the act, Senator Frank Lautenberg (D-NJ) introduced the "Safe Chemicals Act of 2011" (S. 847) with four Senate co-sponsors. The new legislation would have mandated that chemical manufacturers demonstrate the safety of industrial chemicals used in household products and would require companies "to prove their products are safe before they end up in our home and our children's bodies," wrote Lautenberg.

In other words, instead of it being incumbent on the government to prove that the chemicals on the list aren't safe, the burden would be switched to manufacturers to prove that the chemicals that they use are safe. This legislation would have put the U.S. more in line with the European Union's chemical safety model.

Needless to say, the Lautenberg legislation wasn't popular with industrial and manufacturing groups and their Congressional supporters. A later version of the bill attracted 27 co-sponsors and passed out of its committee in July of 2011, but it never reached a full Senate vote, and today is considered officially dead.

Stakeholders are still clamoring for action, however. Consumer and medical groups want deeper product safety. Industry groups object to the necessity of following a patchwork of state chemical safety laws that have cropped up to fill in the gaping holes in the TSCA, as well as corporate policies on certain chemicals being implemented by large retailers such as Staples and Wal-Mart.

The Environmental Side

Environmental groups note that because of the way the TSCA was written, about 62,000 chemicals have completely escaped formal testing, even the ones linked to human health problems, according to Blast Magazine.

"Under the current law, it is almost impossible for the EPA to take regulatory action against dangerous chemicals, even those that are known to cause cancer or other serious health effects," wrote the Natural Resource Defense Council, which notes that 22,000 chemicals have been introduced since 1976 with little to no testing for public or environmental safety.

In fact, the TSCA allows chemical manufacturers to keep some chemical compositions a secret for intellectual property purchases: nearly 20 percent of the 80,000 chemicals are protected by trade secrecy.

The Business Side

The American Chemical Council (ACC), a trade association representing large chemical manufacturers, made no secret of its dislike of the Lautenberg legislation.

"Public confidence in TSCA has diminished, contributing to misperceptions about the safety of chemicals," ACC president Cal Dooley said in his 2011 testimony. But he also insisted the Safe Chemical Act of 2011 would have stunted industry innovation and created "an enormous burden on EPA and on manufacturers with little benefit by requiring a minimum data set for all chemicals."

Individual chemical players like Exxon-Mobile have gone further and actively lobbied against reforms, claiming that more restrictions such as those implemented on the plastic softeners phthalates (to which a number of human health problems have been linked) would result in higher costs, job losses and the closure of businesses and make U.S. companies less globally competitive.

But most manufacturing groups and companies, including Dow Chemical, agree that the current patchwork of state laws and retailers' restrictions doesn't work and that the U.S. needs a standard that can be applied uniformly to reduce reporting burdens.

Angry moms, instead of a formal industry/government debate, put BPA on the public's hit list. Angry moms, instead of a formal industry/government debate, put BPA on the public's hit list.

"This lack of confidence [in the current TSCA] has created pressure on individual state legislatures to create their own chemicals management laws and on retailers to pull products from the shelves, often based on the claims of activists rather than scientific conclusions," said the ACC, no doubt referring to the plastic industry's public relations debacle over Bisphenol-A, which was driven by consumer sentiment and angry parents' groups, not a reasoned safety process.

Some have accused the chemical industry of mouthing support while killing meaningful reform. While the ACC claims to be in support of TSCA reform, it objected to most of the provisions in the Lautenberg legislation, just as it did with the prior year's Safe Chemicals Act of 2010, which also died in committee. Critics, notably the group Physicians for Social Responsibility, say the chemical industry has been full of objections to elements it doesn't want, but has yet to present any specifics of what it does want.

The ACC and the members of a coalition called the American Alliance for Innovation (AAI) have said the Lautenberg bill does "not reflect the input of the Republican Senators or many of the stakeholders on all the very complex issues involved in" TSCA. The Adhesive and Sealant Council (ASC) recently raised the need for a bipartisan solution, as well.

"Everyone agrees that establishing a modernized TSCA program is critical because the absence of action throws these activities into the state legislatures and regulatory agencies," said Mark Collatz, ASC's Director of Government Relations. "Without bipartisan action by Congress, we are likely to end up with a patchwork of requirements for managing chemicals that ultimately will inflict harm on U.S. manufacturing and result in the job losses."

Essentially, everyone agrees action is required, but no one can quite agree on what that action ought to be. Given the challenges facing the 113th Congress -- and its predecessors' track record on passing meaningful reform -- we may have a long wait.