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Our Chemical Safety Law Fails to Protect Us

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It’s after Labor Day. You’re thinking about getting the kids back to school, resuming your doctoral studies, or just gearing up after vacation for a busy September. The last thing you want to think about is the soup of hazardous chemicals you’re exposed to every day. For more than 30 years, the Environmental Protection Agency has largely pursued the “ignorance is bliss” approach. That wasn’t the agency’s fault. It’s been rendered virtually impotent by TSCA. Not the opera, the Toxic Substances Control Act.

Unfortunately, when it comes to toxic chemicals, ignorance is not bliss. TSCA, passed in 1976, makes it virtually impossible for the EPA to protect us from unsafe chemicals, even ones that everybody knows are highly dangerous. This fall, Congress is debating whether to update TSCA, and to bring chemical regulation into the 21st century. There is hope that legislators of both parties can find a way to approve legislative reform that significantly improves the status quo. But whether we can achieve significant reform will depend in large part on the actions of citizens who demand it from their elected officials.

UCS participates in the Safer Chemicals, Healthy Families Coalition, which brings environmental, public health, union, community, environmental justice and children’s health advocates together in an effort to reform our chemical safety laws. The Coalition has strong grassroots support and the engagement of millions of citizens. These citizens have gotten the attention of Congress, but the struggle for safer chemicals is far from over.

TSCA doesn’t meet the test

It certainly is clear that our chemical safety laws must be strengthened. To understand why, you only have to look at TSCA’s flaws. Instead of requiring companies to prove that the chemicals they make are safe, the burden is on the EPA to provide some proof that the chemicals pose certain risks to pubic health or the environment before the agency can require that the companies do safety testing. As a consequence, only about 200 of the 60,000 chemicals in commerce when the law was passed have been tested for safety. Since then the number of chemicals in commerce has grown to more than 80,000, and chemical manufacturers have not provided safety data for the vast majority (85 percent) of these new chemicals.

Right now, the Toxic Substances Control Act of 1976 tips the scale in the industry’s favor. Photo: Flickr user winnifredxoxo

At the very least, you’d think that the EPA could ban or place restrictions on chemicals with a long history of toxicity. That isn’t so. EPA’s heroic efforts to ban asbestos, which has sickened and killed thousands of workers and their families exposed to it, were thwarted by the courts. In 1989, after ten years of study of the chemical’s toxic impacts, EPA issued a regulation that would ban the future manufacture and use of asbestos, a known carcinogen, in almost all products. But asbestos manufacturers sued the agency, and won.  How could that happen? TSCA required that if the EPA chose to restrict a chemical, it had to choose an option to protect the public that was “least burdensome” to the affected business interests. The courts found that EPA had not chosen the “least burdensome” alternative to protect the public. Of course, a company can always challenge whether the EPA has chosen the “least burdensome” approach, because the options can be infinite. No wonder the EPA, after the asbestos disaster, virtually stopped all efforts to ban harmful chemicals.

But as the EPA has been hobbled, the science on chemicals has evolved and caused us to be even more concerned about the chemicals in commerce. We now know that many chemicals in products we use daily may harm us. For example, Bisphenol A (BPA) is a chemical commonly found in plastics, the linings of the canned goods in our pantries, and in a vast array of other consumer goods. Most of us (about 90 percent of the US population) contain levels of BPA in our bodies. Many scientists have raised concerns about the harm it causes, and its possible cancer-causing impacts. There also seems to be evidence that BPA may reduce a women’s fertility, and may also harm developing fetuses and infants. The growing public concerns about BPA caused the makers of formula bottles and sippy cups to voluntarily discontinue using BPA in their products. But BPA’s use in a wide range of other products remains unregulated.

Time to fix the problem

There have been efforts in Congress for a number of years to improve TSCA, so that the EPA can do a better job to protect the public from unsafe chemicals. The Obama Administration, too, has recognized the need for strengthening existing law. When she was EPA administrator, Lisa Jackson proposed principles for reform. Those principles stated that chemical manufacturers must provide EPA with the data it needs to evaluate chemicals for safety, based on a science-based assessment of their risk to the public, taking into account the risks to vulnerable populations, such as children. EPA, she recommended, also should prioritize its review of existing chemicals, so that those chemicals carrying the highest risk to the public would get attention first. EPA also should have a sustainable, consistent source of funds to achieve these goals.

As Jackson made clear, essential to any reform of TSCA has to be shifting the burden to prove a chemical is safe to the industry. The EPA should no longer have to demonstrate a chemical is unsafe and therefore needs more documentation. Rather, industry must prove that a chemical is safe, and without that proof, a chemical should not be assumed to be safe. This seems like such a common-sense approach, and yet it’s a goal that Congress continues to grapple with. Europe can teach us a great deal about chemical regulation. That will be the subject of my second post in my series on chemical safety.

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About the author: Celia Wexler is a senior Washington representative for the Scientific Integrity Initiative at UCS. A former award-winning journalist, Wexler is the author of Out of the News: Former Journalists Discuss a Profession in Crisis, published in 2012 by McFarland. At UCS, Wexler’s issue portfolio includes food and drug safety, protections for scientist whistleblowers, and government transparency and accountability. See Celia's full bio.

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