Safer Chemicals, Safer Products: Is Congress Up to Their Task?

by Ted Schettler, Science Director  If you are among those who assume that chemicals in your consumer products must first be tested for safety before being put on the market you have plenty of company. But you are wrong. Except for pharmaceuticals, pesticides, and some food additives, no Federal or state law requires safety testing of thousands of chemicals in consumer products that people come into contact with every day.   It’s easy to understand your assumption. After all, biomonitoring studies of blood and urine of newborn infants, children, and adults regularly detect hundreds of commercial chemicals from clothing, toys, house paint, kitchen floors, cleaners, carpets, televisions, furniture, shower curtains, and the other products we live with. They are in our food, water, air, soil, and house dust. Surely they must first be tested for safety. No, that is not required.   It wasn’t supposed to be this way. In 1976 Congress passed the Toxic Substances Control Act (TSCA) in response to overwhelming evidence that a poorly-regulated, rapidly-growing chemical industry made products harmful to human health and the environment. The core purpose of TSCA was to regulate newly-developed commercial chemicals and existing chemicals that posed an “unreasonable risk to health or the environment”.   Sadly, TSCA turned out to be a toothless failure. Only a few of the tens of thousands of chemicals grandfathered into continued use when TSCA was enacted have ever been restricted in any way. Most have still not even undergone basic safety assessment. Residents of Charleston, W. Virginia and communities downstream learned this bitter truth in early 2014 when an industrial chemical used to wash coal, 4-methylcyclohexane methanol (MCHM), spilled into the Elk River, the source of drinking water for hundreds of thousands of people. Authorities were alerted when the household water of local residents began to smell like licorice. No one had the slightest idea how toxic the chemical might be or what health effects to be concerned about. MCHM had never been adequately studied and public health officials were left guessing about what to do.   TSCA’s failures are mostly because of lack of clarity about what constitutes an “unreasonable risk”, a requirement that the least burdensome and costly remedy be chosen to reduce risks, and an extraordinarily high bar for requiring basic safety testing of a chemical. Even for chemicals known to be dangerous like asbestos, as written and interpreted by the courts, the law made it virtually impossible to protect people and the environment from harm.   For decades, it has been clear that TSCA must be reformed. But legislators have been reluctant to undertake the task, influenced in large measure by lobbying efforts of the chemical industry and their trade associations, which are loathe to allow regulatory oversight of their products. Years of obfuscation, unmet promises of voluntary reform, restricted data access through often-unjustified claims of business confidentiality, lobbying pressure, and lavish campaign contributions to legislative candidates have resulted in unprecedented failure to reform a deeply flawed, major piece of environmental and public health legislation—until now.   Recent efforts to reform TSCA did not just suddenly spring out of thin air. They are in large part due to decades-long efforts by many non-profit organizations throughout the country, including the Science and Environmental Health Network, that have successfully campaigned for state and local restrictions on dangerous chemicals in consumer products, labeling requirements, and market-forced shifts to safer alternatives. Vigorously opposed by the chemical industry, successes did not come easily. But they have been instrumental in building momentum for Federal chemical policy reform, which finally found a champion in the late Sen. Frank Lautenberg (D-NJ).   Toward the end of his life and career Sen. Lautenberg vigorously worked on TSCA reform. In 2010 he drafted legislation that, among other provisions, required safety evaluation of chemicals in order to remain on the market with “reasonable certainty of no harm” as the goal. The bill languished without any Republican support. Shortly before his death in 2013 Sen. Lautenberg moved toward deeply compromised legislation with Sen. David Vitter (R-LA), who is heavily influenced by his close ties to the chemical industry and its trade groups. Since then Sen. Tom Udall (D-NM), newly funded by the American Chemistry Council, has continued to work with Sen. Vitter, and the latest version of their draft bill is now undergoing markup and amendment in the Senate’s Environment and Public Works Committee.   Although the Udall-Vitter bill has garnered a measure of bipartisan support critics argue that “unreasonable risk” of harm from chemical exposures remains poorly defined and that the bill would do little to expedite timely safety evaluations of thousands of chemicals currently on the market. Meanwhile, in the bill’s current version, once the EPA announces that it intends to study a particular chemical, states would be pre-empted from taking any action to restrict that chemical during an evaluation period that could stretch out for years. So much for local control.   Also on the Senate side, Sen. Barbara Boxer (D-CA) and Sen. Ed Markey (D-MA) have introduced a competing bill with a stronger safety standard, protection of state authority to address chemical safety, and provisions for restricting some of the most dangerous chemicals because of their persistence and capacity to build up to high concentrations in humans and wildlife. On the House side, Congressman John Shimkus (R-IL) has introduced a discussion draft of a different and somewhat less ambitious bill.   That’s where we are. Three competing Congressional bills to reform TSCA. When you receive this issue of the Networker we may have a better idea of whether or not this Congress will have the courage and capacity to protect public health and the environment from exposures to hazardous chemicals. But don’t count on it.   The Science and Environmental Health Network is a member of Safer Chemicals Healthy Families (www.saferchemicals.org)—a large national coalition of health professionals, parents, advocates for people with developmental disabilities, reproductive health advocates, environmentalists, and businesses. We invite you to join us in efforts to achieve meaningful TSCA reform and confirm your perfectly reasonable assumption that industrial chemicals should be subject to safety testing in order to be marketed in consumer products in your homes, schools, daycare centers, hospitals, and workplaces.   Yours in good health, Ted Schettler Science Director