Environmental health and justice communities agree that the updated Toxic Substances Control Act does not meet the promise of chemical safety reform in some fundamental areas but still represents a milestone in the long struggle to protect health and the environment.
Yesterday, President Obama signed into law a long-awaited update to the Toxic Substances Control Act (TSCA), the federal law responsible for protecting us from toxic chemicals. Together with many organizations, Health Care Without Harm has been advocating for years for a more health-protective chemical management framework that puts public health and the environment above the needs of the chemical industry. Many of our healthcare partners have been on this journey with us, testifying before Congress, signing letters in support of strong reform legislation, meeting with legislators, and authoring op-eds in leading newspapers.
With this new law, you may be asking yourself many of the same questions we have been considering. Will the new law provide more protections than the current law? What are the implications of the new law on our work to move the market away from harmful chemicals? Will the new law eliminate the need for state government action? What does the new law mean for health care? The list goes on, and it may take some time before we have complete answers.
There is no doubt that the new law—named the Frank R. Lautenberg Chemical Safety for the 21st Century Act—is better than the old TSCA in some critical ways. Although the pace will be slow, the new law creates a schedule for the U.S. Environmental Protection Agency (EPA) to review chemicals and establishes enforceable deadlines related to chemical reviews for the first time ever.
Under the old TSCA, cost was a consideration in determining if a chemical was safe. The new law creates a health-based safety standard that removes cost as a consideration in determining a chemical’s safety, pushing cost considerations to a later phase of the regulatory process in which the EPA determines how to restrict a harmful chemical. Whereas the old TSCA did not give special consideration to populations disproportionately impacted by chemicals, the new law requires the EPA to determine whether a chemical under review meets the safety standard for vulnerable populations and applies restrictions to the chemical to ensure that it meets that standard. In addition, the law expedites action on some of the worst chemicals—chemicals that persist in the environment, are highly toxic, and are widely considered to pose great risks to public health and the environment.
Even with these obvious upsides, there is agreement within the environmental health and justice communities that the new law does not meet the promise of chemical safety reform in some fundamental areas. The new law prematurely preempts the authority of states to take action to restrict harmful chemicals, potentially creating a delay in enacting important health protections.
The new law also appears to limit EPA’s ability to restrict products imported from abroad that may contain harmful chemicals. And the fundamental shift that we all sought from TSCA reform was not achieved in that the new law does not require a manufacturer to affirmatively demonstrate that its chemical is safe before bringing it to the market for use in consumer products.
Given the slow pace of action anticipated by EPA—even with the new schedule for chemical review—purchasers in the marketplace will continue to play a critical role in moving supply chains away from chemicals of concern. For decades, we have seen the power of the market to transition our economy away from hazardous chemicals. In recent years, the great work of many organizations and committed purchasers has led to the market’s movement away from flame retardants in furniture, bisphenol A in baby bottles, phthalates in medical devices, and formaldehyde in building insulation. With the signing of the new law, the importance of this work isn’t diminished. If anything, it’s more important than ever.
States also will continue to play a key role in filling the gaps left by what will become the new federal chemical safety regulatory framework. We know that EPA’s pace of review will be slow. Chemical industry challenges to EPA’s progress are likely to be abundant. Aside from those chemicals EPA designates as high priority, there is a lot of room for states to play a role in protecting public health and the environment. States should seize the new law as an opportunity to backstop federal protections.
Health Care Without Harm’s work over our twenty-year history has been driven by the many ways in which the health sector is impacted by inadequate protections from toxic chemicals. With the new law, it is unlikely that the disease burden associated with chemical exposures will be reduced dramatically any time soon. Products used in health care will continue being manufactured with chemicals of concern. And we also can safely assume that the new law will not result in adequate transparency in the supply chain.
For health care, and for the many other sectors of the economy engaged either directly or indirectly in the work of making our world a less toxic one, there will continue to be a critical role in much the same way there has been since TSCA first became law back in 1976.
Over the next couple of months, Health Care Without Harm will consider the specific role we should play in the policy arena in a post-TSCA reform era. Much of the new law’s success will depend on its implementation by EPA and watchdogging by environmental health and justice communities. It may be years before we can evaluate the new law’s success and how well it protects public health and the environment. In the meantime, our work continues.
For more information about the new law, read Safer Chemicals, Healthy Families’ An Abbreviated Guide to the Frank R. Lautenberg Chemical Safety for the 21st Century Act.
Rachel Gibson is the Director of Health Care Without Harm's Safer Chemicals program.