A major overhaul of a federal chemical safety law recently passed both the House and Senate with overwhelming majorities. The Frank R. Lautenberg Chemical Safety for the 21st Century Acthas been hailed as a bipartisan success and a major step forward. But environmental health advocates say there are still reasons for concern, or at least caution.
For forty years, testing and regulation of chemical products has been guided by the Toxic Substances Control Act. Despite the name, critics say it has done little to actually control toxic substances. It only allows the EPA to require safety testing once it has evidence of risk, and even after a chemical has been found to pose a threat to human health or the environment, the EPA isn’t required to restrict its use. In fact, it might not be allowed to impose limits if it would cost too much.
As a result, the Union of Concerned Scientists estimates there are currently 80-100,000 chemical substances in commercial circulation in the U.S. Of those, less than 200 have been subjected to some kind of safety testing. And EPA has only regulated a handful.
"Much of the chemical industry and many product manufacturers flag that they do test chemicals, but the tests are conducted and overseen by the industry interests and not publicly available," says Cindi Luppi, New England Director of Clean Water Action and a member of the steering committee for Safer Chemicals Healthy Families. "So, this issue of the right to know and the right to act on chemicals with links to human health damage is a really key pressure point in this debate."
The Lautenberg Act makes some key changes. Under the new law, the EPA can be notified about new chemicals, prioritize certain chemicals or classes of chemicals, acquire information from both manufacturers and independent sources, and - most importantly - make regulatory decisions based on risks to human health and the environment, rather than manufacturers' bottom lines. But it does not make testing mandatory for all chemicals.
"You could say that this law gives EPA the tools to get in the game, finally, which is good," says Luppi. "But I don't think you could characterize this law as precautionary or really even completely preventive."
A major point of concern for Luppi and other environmental health advocates are limits the new law imposes on states' abilities to restrict chemicals. Certain existing laws and regulations would be allowed to stand but, going forward, EPA actions would preempt those of states, and states would not be allowed to enact stricter limits than the federal ones.
"States have been the drivers and the leaders of innovative protections for public health in the light of this federal inaction that's gone on for so long," says Luppi. "States will actually be preempted from acting at a certain point."
Luppi says we could see a flurry of activity, as states try to get laws in place before the window of opportunity closes. For example, Massachusetts' Senate recently passed a ban on some flame retardants in furniture and children's clothing; the legislation is pending in House of Representatives.
Andrew Rosenberg, Director of the Center for Science and Democracy at the Union of Concerned Scientists, says the limits on states' rights are a symptom of undue influence by the chemical industry. Rosenberg is a former fisheries' regulator, and fully supports industries being involved in their own oversight. But he says there's a distinct difference between the two examples.
"In the fishing industry, you're talking about small businesses - very small businesses - not with that lobbying capability at the Washington level," Rosenberg says. "In the chemical industry, you're talking about gigantic businesses - Dow Chemical, Exxon Mobil, Dupont - who have enormous influence and are international operators."
According to a report published last year by the Union of Concerned Scientists, the American Chemistry Council - the leading industry advocacy group - spent $23 million on federal lobbying in 2013-14.
"We live in the era of Citizens United," says Luppi, "where the overwhelming corporate checkbook has fewer limits than it should and - I would say, I think many would say - undue influence on how decisions get made on many levels."
The American Chemistry Council declined to speak with Living Lab, but they have released a statement expressing their support for the new law and calling it "truly historic."
"This legislation is significant not only because it is the first major environmental law passed since 1990, but because TSCA reform will have lasting and meaningful benefits for all American manufacturers, all American families and for our nation’s standing as the world’s leading innovator."
Pressed on whether or not the new law will make consumers safer, both Rosenberg and Luppi express ambivalence.
"I think we will know that when it's implemented. On it's face, it has the opportunity for some success," says Rosenberg. "It really depends on how the EPA moves forward in implementing the law, what resources it's given from Congress on an ongoing basis - this isn't a one-year thing- and, of course the perspective of the industry, and whether they will be cooperative and be engaged and actually work with the EPA."
Luppi says that lawsuits and litigation challenging EPA actions are a distinct possibility and could slow down implementation of the new law.
"It'a cliche, but time will really tell ultimately whether this ends up being a net positive," says Luppi, emphasizing that consumers and retailers need to continue to push for safe chemical products, and not assume federal regulators will take care of it. "It is one piece of an overall puzzle, though, of how we all need to press for common sense updates that reflect modern science and reduce exposure to chemicals that can damage us."