Chemicals in commerce: Will industry-promoted legislation undermine existing laws?

“The United States is facing an industrial chemical safety crisis,” Chemical Safety Board Chairperson Rafael Moure-Eraso told the Senate Environment and Public Works Committee on March 6^th. He spoke at hearing held to discuss President Obama’s August 2013 Executive Order on chemical facility safety, which Obama issued following the catastrophic incidents at the West, Texas fertilizer plant and Louisiana petrochemical facilities. In the wake of the Freedom Industries chemical release in West Virginia, improving the nation’s chemical safety has taken on a new urgency. Yet while the Senate committee is pressing the US Environmental Protection Agency (EPA) to help prevent future chemical disasters, federal legislation has been introduced that would, if enacted, impair current chemical safety policy and make it harder for the public to obtain information about chemical hazards, either in industrial storage tanks or consumer products.

Released on February 27^th, the draft Chemicals in Commerce Act (CICA) is being offered as the House bill to reform the Toxic Substances Control Act (TSCA), the US law that regulates chemicals in commerce. Environmental health advocates and industry representatives agree that TSCA, enacted in 1976 and not updated since, is badly in need of revision. Among other problems, TSCA has allowed some 60,000 chemicals in use when the law was passed to remain on the market without full safety testing. This means that many chemicals, including the one that contaminated Charleston, West Virginia’s water supply (MCHM), are being used without any publicly available comprehensive information about their environmental or human health effects.

In addition to leaving the public with inadequate information about chemicals’ health effects, TSCA also makes it so difficult to ban a chemical’s use that only five have been barred under this law. Chemicals with well-recognized adverse health effects, like formaldehyde and other respiratory irritants, continue to be ingredients in numerous consumer products, including cleaning products, toiletries and cosmetics. Cleaning professionals, salon workers, and others can be exposed to these products for many hours each week.

The Senate introduced the Chemical Safety Improvement Act (CSIA) (S. 1009), its TSCA-reform bill, last year. It has bipartisan support but is opposed by many environmental health advocates and state lawmakers because of provisions that would preempt state law, weaken existing health protections and fail to protect communities directly impacted by toxic pollution. The House CICA, sponsored by Representative John Shimkus (R-IL), who chairs the House Energy and Commerce Committee’s Subcommittee on Environment and the Economy, includes more extensive state-law preemption provisions than the Senate bill as well as elements that would make it even harder than it currently is for the EPA to restrict hazardous chemicals.

The state preemption provisions have garnered the spotlight in this debate because more than half of all US states have enacted laws that either restrict the use of individual chemicals or require reporting on how they are used. These state-level actions have come in response to growing scientific evidence of potential adverse health effects of numerous widely used chemicals, and how difficult TSCA makes it for the EPA to restrict chemical use. The CICA would preempt such regulations, prevent states from acting independently and also prevent state and local governments from collecting information about chemicals from companies that make or use them. “The breadth and scope of CICA’s preemption provisions are truly stunning and deeply disturbing,” wrote Environmental Defense Fund Senior Scientist Richard Denison.

“This bill would do nothing whatsoever to protect the public from the health impacts of toxic chemicals and would instead roll back the very limited oversight that we currently have,” said Andy Igrejas, Director of Safer Chemicals, Healthy Families, a coalition of 450 environmental and health organizations.

“There is a massive disconnect between this bill and where the public and market is going on a global level,” said Kathy Curtis, Executive Director of Clean and Healthy New York, noting that many major manufacturers and retailers – Walmart, Target and Johnson & Johnson among them – are voluntarily implementing policies to restrict use of chemicals associated with health hazards that the EPA has not yet restricted. The CICA would not interfere with such policies, but it would prevent states from establishing what are effectively legally binding safety nets to ensure that all products be similarly free of hazardous ingredients.

The American Chemistry Council (ACC) has welcomed the CICA, calling it “a balanced approach” that “will provide Americans with more confidence in the safety of chemicals.” It’s worth noting, however, that the chemical industry spent more than $61 million on lobbying in 2013 – lobbying that specifically included work on S.1009. Thus far in the 2014 campaign cycle, petrochemical companies and industry associations have donated almost $100,000 to Shimkus’ reelection campaign and nearly twice that much to House Energy and Commerce Committee Chair Representative Fred Upton (R-MI). Representative Paul Tonko (D-NY) Shimkus’ Democratic counterpart on the House Subcommittee has received less than $25,000 from these industry groups. And if there could be any doubt about the ACC’s support for Shimkus and Upton, there are the ACC-sponsored 2012 campaign ads.

FDA rejects industry proposal for cosmetic ingredient regulation

Industry’s hand in promoting legislation that would undermine existing chemicals regulation is directly apparent in the controversy that became public on March 6^th when the Food and Drug Administration (FDA) released its letter to the Personal Care Products Council (PCPC) and Independent Cosmetics Manufacturers and Distributors (ICDM) detailing the FDA’s “profound disappointment” in the organizations’ “proposed draft legislation on FDA oversight of cosmetic safety.” The industry-supported proposal would, according to the FDA, prevent FDA from receiving most reports of illnesses or injuries caused by cosmetics products, virtually eliminate FDA’s ability to verify cosmetic companies’ assurances of product safety and authority to require cosmetics companies to register with the FDA and make it very cumbersome for FDA to declare an ingredient unsafe.

This draft was produced in response to an FDA proposal for enhancing agency oversight of cosmetics ingredients that FDA released last year after input from industry and environmental groups. In his letter to the trade associations, FDA Deputy Commissioner for Foods and Veterinary Medicine Michael R. Taylor wrote, that while the draft bill “creates the appearance of a modernized cosmetics regime, but a reality that actually prevents federal and State governments from protecting Americans from unsafe cosmetics.”

The proposed bill’s provisions “not only do not move us forward toward that goal, they would actually reduce FDA’s current ability to take action against dangerous cosmetics. Taken together with the sweeping preemption provisions, which almost completely eliminate States’ authority to protect their citizens from unsafe chemicals in cosmetics,” wrote Taylor,  “the provisions of the draft industry bill could put Americans at greater risk from cosmetic-related illness and injury than they are today.”

What the industry is proposing, “demonstrates how far off the trade associations are from where consumer demand is right now,” said Janet Nudelman, Director of Program and Policy at the Breast Cancer Fund, which participated in the FDA-led policy discussions.

The Personal Care Products Council has said in a statement that it believes “the FDA’s response misrepresents the intent of our legislative proposals and we strongly disagree with their allegation that our proposed legislation would weaken their regulatory oversight of cosmetics.”

A long-standing labeling program

And while all of this was going on, ACC President Cal Dooley speaking at an industry-sponsored conference questioned the legality of the EPA’s plans for its Design for Environment (DfE) labeling program, saying it “doesn't meet Federal Trade Commission guidelines for green labeling.” The program has been around for more than 15 years and works with industry, the environmental community and academia to evaluate environmental and human health concerns associated with chemicals used in manufacturing and products and promote use of safer chemicals. More than 2,500 products – including a great many professional cleaning products – have gone through this process and carry the DfE logo.

The EPA said it “has announced plans to engage stakeholders and the public in the redesign of the current label to ensure that it provides consumers with an easier to identify and understand label that better conveys the scientific rigors and benefits of the DfE Safer Product Labeling Program.”

“What we have concerns about is a public-sector entity that is assessing the safety of chemicals and should they also get into an arena where they are making determinations ... that some product is safer for consumers than other products that they've already determined are safe for use,” said Dooley as reported by E&E. The program, Dooley said, according to the report, was “unprecedented” in having a federal agency “developing a label that has the potential for significant market implications.” EPA did not respond specifically to the ACC’s questioning of the label’s legality.

There seems to be a pattern here; while state and local governments – and many manufacturers – are responding to growing public is demand for safer chemicals and more information about chemicals used in products – industry trade associations appear to be working to counter that progress. – The House Subcommittee on the Environment and Economy has scheduled a hearing on the Chemicals in Commerce Act for March 12^th.

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, Ensia, The Washington Post, Salon and The Nation.