While US regulators, chemical industry agree that country's main chemical safety law, the Toxic Substances Control Act, needs fixing, they do not agree on who should have to prove a chemical is safe
April 16, 2013
(The New York Times Co.)
– MANY Americans assume that the chemicals in their shampoos, detergents and other consumer products have been thoroughly tested and proved to be safe.
This assumption is wrong.
Unlike pharmaceuticals or pesticides, industrial chemicals do not have to be tested before they are put on the market. Under the law regulating chemicals, producers are only rarely required to provide the federal government with the information necessary to assess safety.
Regulators, doctors, environmentalists and the chemical industry agree that the country's main chemical safety law, the Toxic Substances Control Act, needs fixing. It is the only major environmental statute whose core provisions have not been reauthorized or substantively updated since its adoption in the 1970s. They do not agree, however, on who should have to prove that a chemical is safe.
Currently this burden rests almost entirely on the federal government. Companies have to alert the Environmental Protection Agency before manufacturing or importing new chemicals. But then it is the E.P.A.'s job to review academic or industry data, or use computer modeling, to determine whether a new chemical poses risks. Companies are not required to provide any safety data when they notify the agency about a new chemical, and they rarely do it voluntarily, although the E.P.A. can later request data if it can show there is a potential risk. If the E.P.A. does not take steps to block the new chemical within 90 days or suspend review until a company provides any requested data, the chemical is by default given a green light.
The law puts federal authorities in a bind. ''It's the worst kind of Catch-22,'' said Dr. Richard Denison, senior scientist at the Environmental Defense Fund. ''Under this law, the E.P.A. can't even require testing to determine whether a risk exists without first showing a risk is likely.''
As a result, the overwhelming majority of chemicals in use today have never been independently tested for safety.
In its history, the E.P.A. has mandated safety testing for only a small percentage of the 85,000 industrial chemicals available for use today. And once chemicals are in use, the burden on the E.P.A. is so high that it has succeeded in banning or restricting only five substances, and often only in specific applications: polychlorinated biphenyls, dioxin, hexavalent chromium, asbestos and chlorofluorocarbons.
Part of the growing pressure to update federal rules on chemical safety comes from advances in the science of biomonitoring, which tells us more about the chemicals to which we are exposed daily, like the bisphenol A (BPA) in can linings and hard plastics, the flame retardants in couches, the stain-resistant coatings on textiles and the nonylphenols in detergents, shampoos and paints. Hazardous chemicals have become so ubiquitous that scientists now talk about babies being born pre-polluted, sometimes with hundreds of synthetic chemicals showing up in their blood.
It often takes a crisis to draw attention to how little the government knows about industrial chemicals in circulation. After the BP oil spill in the Gulf of Mexico in 2010, at least two million gallons of chemical dispersants were spread to break up the slick. But federal officials could not say they were safe because minimal testing had been done.
The current presumption that chemicals are ''safe until proven dangerous'' stands in marked contrast to how pharmaceuticals and pesticide companies are handled. Companies making these products have to generate extensive data demonstrating the safety of pharmaceuticals or pesticides before they are sold.
This was not always the case. Pharmaceutical companies used to be able to sell drugs with minimal prior testing, but that changed after a drug called Thalidomide, given in the 1950s to pregnant women for morning sickness, was found to cause severe birth defects the public outcry helped push the medical field to take a precautionary approach to introducing new drugs.
Federal reform of the toxic substances act may be coming. Last week, Senator Frank R. Lautenberg, Democrat of New Jersey, and Senator Kirsten E. Gillibrand, Democrat of New York, introduced a bill called the Safe Chemicals Act of 2013, which would require the chemical industry to demonstrate that a chemical is safe in order for it to be sold. The bill, which has more than 25 Democratic co-sponsors, would put limits on trade secret practices and requires industry to reduce use of the chemicals designated by the E.P.A. as being of ''greatest concern'' because they are most toxic.
The bill has strong support from environmentalists but opposition from the chemical industry. It has some similarities to rules that went into effect in the European Union in 2007.
Rather than adding more regulations, Calvin Dooley, president of the American Chemistry Council, said in testimony that the ''E.P.A. should take advantage of the massive amounts of data and information that the agency already has access to.'' His organization has also argued that the bill risks raising costs, squelching innovation and putting American companies at a competitive disadvantage.
Senator David Vitter, Republican of Louisiana, is expected to introduce a competing bill that is likely to win the support of the chemical industry. While details about the bill are sparse, it aims to be less of a burden on industry. It would probably not require prior testing on many chemicals, and it would demand less data of companies than would Mr. Lautenberg's bill.
The competing bills may end up splitting the Senate down party lines, which could doom reform altogether.
In the absence of federal action, more than 20 states have created their own toxic-substances programs to police chemical safety. Many business owners say this trend is creating a confusing patchwork. Health and environmental advocates counter that, pending effective federal reform, these programs are better than nothing at all.
For now, consumers and companies looking for safer products are largely on their own.