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Would Chemical Safety Bill be “Gold Standard” or “Fool’s Gold?”

Friday, April 15, 2016

Cal Dooley, the top lobbyist for the chemical industry, likes to say he is optimistic that the proposed chemical safety law being developed in Congress would be the “gold standard” on which other nations could base their chemical regulations.

House and Senate negotiators are trying to reconcile two proposed revisions of the Toxic Substances Control Act of 1976 – a law so weak that the Environmental Protection Agency was unable to use it to ban highly dangerous asbestos.

In prepared remarks at a recent industry conference, Dooley contended that, once finalized, the legislation could be held up as the “new gold standard for chemical regulation around the globe.”

Gold standard? Or fool’s gold?

While there’s still a slim chance the new legislation might be better than current law, let’s not get carried away.

For the past decade, the real standard setter for chemical management has been the European Union. The E.U.’s chemical regulatory program, called “Regulation, Evaluation, Authorisation and Restriction of Chemicals,” or REACH, is widely considered the most comprehensive and rigorous chemical law in the world.

The fact is, the bill Congress is finalizing is not going to displace REACH as the “gold standard.” Here are five reasons that REACH is a stronger law than what our legislators are now considering:

  1. It has a stronger safety standard. REACH follows something called “the precautionary principle.” That means that when the risks of a chemical are not widely known or understood, regulators can take action to limit how it’s used until it is shown to be safe. In other words, chemicals are presumed to be risky unless proven otherwise. By contrast, the pending House and Senate bills use a modified version of the weak standard in current U.S. law. It takes the opposite approach – chemicals are presumed to be safe unless proven toxic.  
  1. REACH puts the burden of proof on industry. In the European Union, it’s industry’s responsibility to show that chemicals are safe through a system of registration, testing, periodic safety reports and special authorization requirements for the most dangerous chemicals. Under both the House and Senate bills, it would be up to the EPA to identify which chemicals are likely to pose risks and then prove that they’re toxic before it could impose any restrictions.   
  1. No data, no market. Under REACH, chemicals can only be marketed if there is data to show the chemical is safe or that it can be used safely. Under both the House and Senate bills, companies producing new chemicals only have to give EPA the data they have or can reasonably obtain. While both bills expand the agency’s authority to request more data, neither explicitly requires it to do so. As a result, chemicals could continue to slip into commerce without adequate information about their effects on health or the environment. And neither bill requires companies to submit safety data on chemicals already on the market unless there is a significant increase in production or if the EPA specifically demands it.
  1. REACH targets the most toxic chemicals. The European system focuses much of its attention on chemicals placed on a list of “substances of very high concern for authorisation.” This includes substances that can cause cancer or genetic mutations, are persistent in the environment, accumulate in living things or are toxic to reproduction. Chemicals on the list of “substances of very high concern for authorisation” can only be used if companies seek permission for specific uses and demonstrate that the risks can be controlled. To date, E.U. regulators have put 31 chemicals on this list and are assessing another 168. In the U.S., both the House and Senate bills would make efforts to varying degrees get the EPA to prioritize or expedite its evaluations of chemicals that exhibit some of those characteristics. But neither bill would require EPA to quickly review and restrict 1,000 of the known most dangerous chemicals, meaning that it could take a generation to do the job.     
  1. Whole supply chain approach. One of the most unique aspects of REACH is that it requires industry to share information up and down its supply chain. That means a producer of toxic formaldehyde would have to share data with all its buyers – whether they use it in cleaning supplies, flooring or personal care products. This forces manufacturers to be aware of all possible uses of their chemicals and all the different ways people could be exposed. It also makes downstream users look at the safety data that could help them to use the chemicals more responsibly. With comprehensive supply chain information, it’s much easier and more accurate to evaluate exposure and complete risk assessments. There are no provisions in either the Senate or House bills that take this whole supply chain approach to chemical safety.     

That doesn’t look like a “gold standard” to us.

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