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Beauty Secrets: Chemical industry systematically defeats health protections

No pre-market safety testing or approval is required under any federal law for chemicals in cosmetics, toys, clothing, carpets, or construction materials, to name just a few obvious sources of chemical exposure in everyday life. This little known fact is the premeditated result of an orchestrated campaign by the chemical industry to avoid testing and regulation of their products. It largely explains why products like hair spray, hair dye, pacifiers, stain repellants, glues and children's toys get on the market, only to be found to contain highly toxic compounds at unsafe levels after decades of widespread use. Once these products are on the market, there is no practical legal mechanism by which health authorities can remove them from commerce, short of a public health disaster or consumer uproar.

OSHA

Since the 1950's, the chemical industry has systematically blocked efforts to require safety studies for the compounds it produces. This strategy first played out with workplace standards adopted under the Occupational Safety and Health Administration (OSHA), and was repeated with the passage and implementation of the Toxic Substances Control Act (TSCA).

The first chemical health standards in the United States were adopted by OSHA in 1972. Set in theory to protect workers, these standards were initially created in the 1940's by representatives from the chemical industry operating under the auspices of the American Council of Governmental and Industrial Hygienists (ACGIH). At the time the standards were first introduced in 1942, ACGIH issued major caveats regarding their application to human health, stating that: "[they are] not to be construed as recommended safe concentrations" (NCGIH 1942).

Toxicity tests on animals had barely been invented at that time, and the standards themselves were based on rough estimates of acutely hazardous and lethal levels of exposure. In the words of the scientist who devised many of them, the so-called threshold limit values (TLVs) were designed, "to provide a handy yardstick to be used as guidance for the routine control of these health hazards - not that compliance with the figures listed would guarantee protection against ill health" (Cook, 1945).

This did not stop the chemical industry from promoting TLVs as legitimate health standards, and in 1972, OSHA adopted TLVs wholesale as the nation's first set of enforceable health standards for chemicals in the workplace. In the process these "handy yardsticks" took on an aura of respectability that belied the fact that there was essentially no science to support their relevance to human health and safety. The best estimates are that basic toxicological data were available for only five percent of some 600 industrial chemicals for which OSHA had adopted standards by 1988 (Castleman and Ziem 1994, Roach and Rappaport 1990).

TSCA

This process of faux regulation was repeated again when the same chemical industry giants teamed up to write the nation's major toxic chemical law, the Toxic Substances Control Act (TSCA). Passed with virtually no regulatory teeth, TSCA has been an unparalleled failure. Of the 62,000 chemicals on the market when TSCA was passed in 1976, EPA has successfully requested data for 263 compounds. Of the 15,000 chemicals marketed in quantities exceeding 10,000 pounds per year, EPA has completed regulatory actions to limit use or exposures on just 5, or 0.03 percent (3 one hundredths of one percent). Four of the five were already regulated under other statutes, and only one, lead in paint, affected a consumer product (Roe et al 1997).

TSCA is best thought of as a self-defeating feedback loop. Under the law, all chemicals are presumed safe, and the burden of proof is on the EPA to demonstrate that a chemical is causing harm before it can take any regulatory action. However, the agency cannot require that industry conduct the tests needed to show that a chemical is causing harm, until the agency has shown that the compound may present an "unreasonable risk," or that human exposure is "substantial" or "significant". Substantial exposures can almost never be proven without additional data from industry, and significant exposures cannot be proven without information on the chemical's toxicity. Of course, compelling toxicity data are almost never available for the compound in question or EPA would not be trying to publish a test rule in the first place.

Even if all these hurdles are cleared, which is extremely unlikely, in order to request basic toxicity data on any single chemical the EPA must issue a test rule through the process of a rulemaking under administrative law. This roadblock is unique to TSCA. Under pesticide law, or food safety law, EPA or FDA can request virtually any test that they need to assess the safety of a compound.

A defining moment in the collapse of TSCA occurred in 1990 when EPA attempted to issue test rules for the paint thinner cumene. The proposed test rules were immediately challenged by the Chemical Manufacturers Association on the grounds that EPA had not shown that human exposure was "substantial," the basic requirement under Section 4 of the Act. The courts upheld the CMA argument that the burden of proving "substantial" exposure and risk was on the EPA and not the manufacturers (Chemical Manufacturers Ass'n v. EPA, 5th Cir. 1990).

To date EPA has issued rules requiring toxicity testing for 0.4 percent, or 263, of the 62,000 chemicals on the market when the law was passed. And even when issued, test rules generally do not require comprehensive testing. With barely any data generated via test rules the agency cannot support a finding of substantial risk for any chemical, and indeed the agency has taken only five final actions since passage of the law (Roe et al 1997).

The final nail in the coffin came in 1991. EPA was trying to use TSCA to regulate asbestos, arguing that it presented an "unreasonable risk of injury" to human health. Again the TSCA feedback loop prevailed, and the court ruled that EPA had not met the burden of providing substantial evidence that asbestos presented an unreasonable risk of injury to human health (Corrosion Proof Fittings v. EPA, 5th Cir. 1991). Since this decision, EPA has undertaken no additional major regulatory actions under the Act.

Under pressure from environmentalists and the Clinton administration, in 1999 the chemical industry agreed to conduct basic health screening tests for about 3,000 high production volume compounds out of a universe of more than 75,000 chemicals registered for commercial use today, 15,000 of which are marketed in quantities exceeding 10,000 pounds per year. This tiny step forward is entirely voluntary and, even if it is completed, it will not provide regulators and public health authorities with sufficient information to fully assess the long-term adverse effects of toxic chemical exposure. Tests now recognized as critical to a full understanding of a chemical's toxicity will not be conducted at all under this initiative. These include cancer bioassays, studies on the developing nervous system, the immune system, the endocrine system, and perhaps most important, human monitoring to determine the extent of human exposure.

This latter element is critical. As discussed below, a string of recent discoveries reveal that human exposure to commercial chemicals used in common consumer products is almost certainly much more pervasive than previously thought. This new strata of contamination is in addition to the considerable well-known toxic load of pollutants (such as PCBs, dioxin, and DDT) found in the blood and body fat of virtually all people in the industrialized world.