Regulating Toxic Substances

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Like many Americans, I’ve lived under the assumption that the chemicals used in all sorts of everyday products are thoroughly tested and known to be safe. However, every so often, we’re reminded that this is not always the case.

Over the past few years, we’ve heard concerns about BPA in our plastic water bottles and flame-retardants in upholstered couches and car-seats. Often these questions regarding the safety of chemicals come to light only after an exposure incident or incorporation into consumer goods. This is the unfortunate norm because of the regulatory climate surrounding the production and use of chemicals and how little information on a chemical’s safety is required before they enter the market.

The Toxic Substances Control Act, or TSCA, is the major statute regulating chemicals in commercial use. Congress is considering modifications to TSCA that address criticisms that the 1976 law makes it too difficult to regulate dangerous chemicals, even when they have known toxicity. This difficulty arises from a TSCA requirement, which says that the U.S. Environmental Protection Agency (EPA) must prove that a chemical is high risk to the environment and humans before any regulatory action can be taken.

The absurdity of this high burden is evidenced by the results of the EPA’s 1989 effort to ban most uses of asbestos, which is known to cause lung cancer when small particles are inhaled. The regulation was struck down by a court citing insufficient evidence for the ban, even after the EPA spent 10 years compiling that very evidence. Moreover, TSCA does not require testing for chemicals before they are used. In fact, of over 83,000 chemicals registered with the EPA, only a small percentage have undergone rigorous toxicity testing.

A detailed understanding of the risks associated with commercially used chemicals is vital – both from environmental and human health points of view. The degradation of natural systems due to release of dangerous chemicals will eventually have effects on humans, for example, when polluted waterways become unsafe sources of drinking water. Additionally, human health, especially the health of vulnerable populations such as children, should be regarded in decision abouts chemical usage and possible exposure. How can this be accomplished without the data necessary for informed decision making? Because of TSCA’s failure in this regard, a patchwork of laws at the state level have emerged to regulate some goods, including those intended for children.

The European Union has recently chosen to take a different and more inspiring approach to the regulation of commercial chemicals, which can be summed up by its slogan “no data – no market”. Their program, called REACH, requires manufacturers to demonstrate that a chemical does not pose a significant risk to human and environmental health. To evaluate these risks, REACH mandates data collection on chemicals to examine their toxicity and fate in the environment. This information is required for chemicals used in quantities greater than 1 ton, with more information and tests required at increasing usage thresholds.

Unlike TCSA, REACH’s information gathering also extends to chemicals that have been in use for a long time. REACH’s implementation is not complete yet, but so far new toxicity information has been gained on chemicals that already have wide use. This information has led to greater caution in their usage, based on new understanding of the implications to environmental and human health.

The EPA has made great strides in developing toxicity testing protocols that accelerate the assessment of chemical risks to humans and the environment, but it remains to be seen whether they will be allowed to make meaningful use of all the data they are gathering.

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