Federal oversight of the more than 80,000 chemicals used in the United States is essentially nonexistent. The 34-year-old law meant to regulate chemicals – the Toxic Substances Control Act, or TSCA – makes it nearly impossible to pull harmful chemicals off the market. It also doesn’t require companies to understand the environmental and health consequences of a chemical before it is marketed. The Environmental Protection Agency has managed to ban only five chemicals of those covered by the act.
With the federal government asleep at the wheel, several states are taking action. California just unveiled a far-reaching program to eliminate or reduce hazardous chemicals in hundreds of everyday products. The Green Chemistry Initiative is the most comprehensive effort in the nation to identify toxic chemicals in cosmetics, household cleaners, food packaging and other consumer goods and require manufacturers to look for safer substitutes.
In recent years Maine, Minnesota and Washington state also have launched programs designed to replace chemical-by-chemical regulation with across-the-board policies that address the big picture. Meanwhile, in the last decade more than a third of the states have enacted bans or restrictions on individual chemicals as a growing body of science has linked them to diseases like breast cancer, birth defects and reproductive harm and hundreds of these chemicals have been found in breast milk, our bodies and even newborn babies.
These states are filling the breach left by the utter failure of the nation’s outdated federal toxics law to protect Americans from the health threats hidden on retailers’ shelves. But their pioneering efforts could be swept aside by the outcome of trade negotiations with Europe and by legislation pending in Congress that could roll back state regulation of toxic chemicals.
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Reform of a badly broken U.S. chemical law and promotion of free trade might sound like worthy goals. But both initiatives may contain provisions that would roll back the advances California and other places have made in chemical safety, while undermining the strong European regulations that have inspired state-level reforms in the U.S. As currently crafted, the initiatives are linked by an insidious strategy: The chemicals industry is pushing a bill in Congress that would gut state regulation, providing a fig leaf of reform that will in turn facilitate a NAFTA-like trade deal that undercuts Europe’s program – the gold standard of global chemical regulations.
In the trade negotiations, the Obama administration wants to weaken the EU’s chemical regulatory system, known as REACH.
REACH is a common-sense embrace of the precautionary principle – better safe than sorry. It requires manufacturers to disclose detailed health and safety information for all chemicals in commerce, and puts the burden of proof on the manufacturer to show that chemicals are safe. But REACH doesn’t line up with the administration’s vision for a laissez-faire transatlantic economy. The goal is to deregulate economies on both sides of the Atlantic, on the theory that growth will result if government gets out of the way – even if that means undercutting sensible safeguards to protect human health and the environment.
The threat to the states’ public health leadership is even more direct from the TSCA “reforms” being considered in the U.S. Senate. The Chemical Safety Improvement Act, introduced by Sen. David Vitter, R-La., is a step backward from an already bad law.
The Vitter bill would still set too high a burden of proof for the Environmental Protection Agency to restrict harmful chemicals, and the standard set for chemical safety would be far too easy for manufacturers to meet. It would effectively give chemical companies immunity from lawsuits in state courts over death or disability caused by chemicals deemed safe. Most worrisome for California and other states, the Vitter bill would pre-empt state law, allowing dangerous chemicals onto the market despite legislators’ attempts to ban them. If the pre-emption clause were removed and stronger protections added for vulnerable populations and communities, the Vitter bill could mean progress, but as is, it would be a public health and environmental disaster.
The Obama administration’s agenda in trade negotiations and Vitter’s phony reform bill share a common goal: to roll back safeguards in Europe and California that regulate the release of dangerous chemicals into the marketplace and the environment – and ultimately into our bodies and those of our children. We deserve better.