Kathleen Schuler, Co-Director Healthy Legacy, Healthy Kids and Families Program Director
Widespread human exposure to toxic chemicals in everyday consumer products contributes to increased rates of cancer, learning and developmental disorders, reproductive problems, asthma and birth defects. Better regulation of chemicals could help reduce the incidence of these chronic health conditions and disorders.
That’s why Healthy Legacy as a 35-member public health coalition has been busy passing seven bills in the past nine years to protect public health from toxic chemical exposures in products. At the same time, we’ve been pushing for reform of the federal law that regulates industrial chemicals in the U.S., called the Toxic Substances Control Act or TSCA. If you’re familiar with TSCA, you know that TSCA was passed in 1976 and has not been updated since. In the past forty years it has allowed EPA to regulate only five chemicals of the more than 84,000 in commerce today. So we know that TSCA has failed in its job to protect our health. That’s why the states have stepped up to fill in the gaps in federal regulation. Thirty-four states have enacted 167 chemical protection laws in the past ten years.
Despite these important actions by state legislatures, a significant number of toxic chemicals remain on the market, including hormone disrupting chemicals such as phthalates in personal care and household products, BPA in can linings and receipt paper and toxic flame retardants in furniture and children’s products, among others. Both public health organizations and the industry have been pushing for TSCA reform, but for different reasons. While Healthy Legacy advocates for TSCA reform to create stronger public health protections, industries seek reform to address the patchwork of state regulations across the country.
This brings us to the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a bill to finally update TSCA. This bill recently passed in both the U.S. House and in the Senate on June 7. The bill has some strengths and also some significant weaknesses. The original version of the bill introduced in the Senate three years ago would have been worse than current TSCA and would have preempted most state actions on chemicals. Due to the work of key legislators and advocates across the nation, the final bill is significantly improved, but still falls short of what most public health and environmental organizations can endorse.
Good New and Bad News
The bill will empower the EPA to tackle the worst chemicals and requires the EPA to address toxic chemical exposures in vulnerable populations, such as workers and children. However, the rate and pace of chemical safety assessments will leave toxic chemicals on the marketplace for decades. With a backlog of over 80,000 untested chemicals, the EPA will only be required to assess 20 chemicals at a time. The bill also places new limitations on EPA’s authority to require notification of chemicals used in imported products, including toys, clothing and other home products, allowing toxic chemicals to sneak into the marketplace and into our homes.
The biggest problem with the bill is that it places new restrictions on states seeking to enact public health protections on toxic chemicals. This was the big win for industry in the bill, creating an initial preemption of state action on chemicals that EPA lists for assessment. However, due to some last minute negotiations by Representatives Pallone and Tonko, this initial state preemption was tempered.
Where does this leave Minnesota and other states?
While states will no longer enjoy the significant leeway that the current law affords, states still retain some important authorities to protect their citizens from toxic chemical exposures. States can still enact laws relating to the first ten chemicals that EPA assesses, as well as chemicals subject to industry-requested risk evaluations. States can also act on chemicals not designated as high priority by EPA and uses of priority chemicals outside of the scope of an EPA risk evaluation. The bill allows states to enact chemical reporting and monitoring requirements and state water, air and waste protections. In addition, actions related to laws passed before April 22, 2016 are grandfathered in and cannot be preempted. Finally, states can take action on chemicals and products not regulated under TSCA, such as cosmetics, food packaging and food additives, which are under the purview of the FDA.
Congress has spoken and states will have to live with the new TSCA. With EPA only assessing 20 chemicals at a time, it’s clear that the Minnesota legislature will continue to have an important role in protecting Minnesota families from unnecessary toxic chemical exposures for years to come.