The Toxic Substances Control Act needs the right reform

Today, the Senate Environment and Public Works Committee will hold a hearing on the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a bill introduced by Sens. David Vitter (R-La.) and Tom Udall (D-N.M.) to reform the Toxic Substances Control Act of 1976 (TSCA). The bill is hailed as bipartisan. The American Chemistry Council, Dow Chemical and the Environmental Defense Fund immediately sent out press releases touting the benefits of the bill.

{mosads}There are a lot of good reasons to reform TSCA, but Vitter-Udall bill does not take TSCA reform in the right direction. A better approach is outlined in the bill introduced by Sens. Barbara Boxer (D-Calif.) and Ed Markey (D-Mass.), the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act.

The Vitter-Udall proposed TSCA amendment has three fatal flaws that need to be corrected. First, the bill dramatically reduces state authority and interferes with the democratic process of states as laboratories of reform. Second, the bill creates what one coalition of public health, labor, environmental and business calls a “low priority loophole” that effectively ends regulations of a majority of chemicals. Third, the inability to regulate chemicals in products made overseas not only allows the flood of dangerous products to continue to flow in from abroad, but the provision may further encourage companies currently manufacturing in the United States to move jobs overseas.

In 1976, when TSCA was enacted, scientific understanding of chemical effects on human health and the environment was less evolved. Concern about chemical exposure in the 1970s was focused primarily on cancer. Scientific inquiry explored what levels of exposure would avoid population spikes in cancer.

Scientists now know low levels of chemical exposure can have a medicinal effect changing human biochemistry. Just as taking the wrong medicine or the wrong dosage can make people sick, persistent low-level chemical exposures can also have negative impact on human health and the environment. Sometimes the epigenetic impacts of chemical are trans-generational, altering the body chemistry not just in the exposed individual, but in future generations as well.

Certain states have taken the lead to add greater protection from chemical exposure. California has long identified and examined “emerging chemicals of concern,” and in 2013, the state enacted the Safe Consumer Products program to implement portions of the 2008 Green Chemistry Law. California’s program is an innovative approach to regulation of chemicals in consumer products. Rather than ban chemicals with documented negative health impacts, California requires manufacturers that sell “priority products” perform a detailed analysis that either justifies current formulation or uses a safer alternative.

California is not alone in requiring chemical manufacturers to consider the safe use of chemicals in consumer products. Under the Children’s Safe Products Act, Washington state requires manufacturers to report children’s products sold in state that contain a “chemical of high concern to children.” Washington state attempted to limit the amount of lead, cadmium and phthalates allowed in children’s products, but had those provisions struck down in the courts as preempted by federal law. The federal Consumer Products Safety Commission is only now engaged in rule-making to consider the adoption of the protections Washington state wanted to afford children.

The Vitter-Udall proposed TSCA amendment is designed to end state innovations, such as those in Washington and California. By shifting all regulation of chemicals to the dramatically defunded U.S. Environmental Protection Agency (EPA), industry can avoid the reporting requirements in Washington state and the alternative chemical analysis in California. Furthermore, once a chemical earns the coveted designation as a “low priority chemical,” then inquiry as to the safety of that low priority chemical is effectively ended — even if the scientific understanding of the chemical impact on human health and the environment changes.

In contrast, the Boxer-Markey bill proposes TSCA reform without preempting advances made by the states and while preserving the EPA’s authority to regulate chemical imports. The Boxer-Markey bill allows citizens to challenge a low priority designation and allows states to continue to enforce federal standards — an extremely important factor as Congress continues to undermine the enforcement authority of the EPA by reducing funding.

There is no question that TSCA is in need of reform, but the Vitter-Udall bill is not the right reform.

Correction: This piece originally stated that the Environmental Defense Fund (EDF) received funding from the chemical industry, which is erroneous; EDF did not, and does not, receive such funding. We regret the error.

Geltman is the author of 17 books on environmental and natural resources policy and an associate professor and program director for Environmental & Occupational Health Sciences at the City University of New York (CUNY) School of Public Health and the Urban School of Public Health at Hunter College.