Safer Made Analysis of the Frank R. Lautenberg Chemical Safety for the 21st Century Act

This past week the US House of Representatives passed (403-12), the Frank R. Lautenberg Chemical Safety for the 21st Century Act in a bipartisan action that modestly expands the Environmental Protection Agency’s (EPA) ability to oversee chemicals in commerce. A final vote on the bill in the Senate is currently being blocked by Senator Rand Paul, despite broad bipartisan support in earlier senate votes. If approved, the President has signaled that he will sign the bill into law. This bill is designed to reform the 1976 Toxic Substances Control Act (TSCA) which is widely recognized as ineffective and out of date.

Many people incorrectly assume that the US government and the Environmental Protection Agency already test chemicals used in consumer products like shampoo and couches for safety. Even under the proposed expansion, the chemicals used in consumer products will remain largely unregulated and consumers interested in making safer choices will still need to rely on third party assessments to find safer products. Even though this bill does very little to protect consumers, it does empower the EPA to gather more information about the health impacts of chemicals used in commerce. Below you can find a point by point summary of what the bill does and does not do to change the regulation of chemicals in the US.

For Safer Made this bill underscores the growing awareness of chemicals of concern in consumer products as demonstrated by the broad support for this bipartisan bill. Given the relatively modest scope of the bill, actions being taken in the private sector by industry leaders like Target, Walmart, Patagonia, Levis, Seventh Generation, Method and many others will still be a far greater positive influence on the chemical supply chain than federal regulation. Safer Made will continue to partner with these industry leaders to identify and support alternatives to hazardous chemicals ahead of action by the EPA.For more on this topic and the opportunity for new chemistry, listen to Marty Mulvihill, partner at Safer Made on Thursday’s KQED’s Forum broadcast.Summary of the Frank R. Lautenberg Chemical Safety for the 21st Century ActWhat the Bill does for the EPA:

Allows the EPA to review all chemicals currently used in commerce. When TSCA was passed in 1976 all chemicals already on the market (60,000) where grandfathered into use and the EPA could not request any further information.
Allows the EPA to reassess confidential business information claims (CBI), which were widely used to withhold critical information from the EPA under TSCA. The current bill mandates that CBI claims must be substantiated by the chemical producer and must be renewed every 10 years.
Allows the EPA to require additional testing of chemicals by the industry without going through the lengthy rule making process that was required under TSCA.

Remaining issues to be resolved:

This regulation does not give consumers a right to know what is in their products. Product and chemical transparency remain one of the biggest barriers to action and this bill does not make things any better.
Chemical review will be extremely slow. EPA will likely only review 10-20 chemicals per year despite the fact that there are tens of thousands of registered chemicals, including at least 1000, that EPA considers a high priority and 700 new chemicals introduced every year.
The safety standard set in the new bill is still relatively weak. There is no minimum standard for toxicity testing on chemicals and the legal burden “no unreasonable risk of harm” is weaker than the standard set for chemicals in other settings “reasonable certainty of no harm.”

Areas where the effect of the Bill is still unclear:

Implementing a health standard rather than a cost-benefit standard for the assessment and regulation of chemicals. It appears that the EPA will only need to demonstrate health risks in order to prioritize chemicals, but that they may still need to pass the cost-benefit test in order to regulate a given chemical.
It is not clear if the EPA will have the resources needed to meet the mandates of the new bill.
It is not clear how the review process for chemicals prioritization works and how much influence companies will be able to exert over it.

States’ ability to regulate chemicals of concern will be superseded by the federal regulation on a chemical by chemical basis. With the exception of California’s Proposition 65 and the Massachusetts Toxic Use Reduction Act which will both be unaffected by the new law, the federal ruling on a given chemical will take precedence.