Toxic Chemical Reform Q & A
Why is Moms Clean Air Force asking Congress to take up a new chemical safety bill?
For years, moms across the country have been demanding safeguards against dangerous chemicals.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act contains important improvements to our current broken and inadequate law.
Right now, there are thousands of chemicals on the market and in the products we use every day.
Under current law, the vast majority of these have been given a free pass. Many of them are in our homes, schools, and workplaces – and our bodies, too. They were just assumed to be safe, with little to no testing or evaluation by the EPA.
The Lautenberg Act, for the first time, gives the EPA the mandate to evaluate the safety of all chemicals in commerce. This is a significant shift in chemical protection.
We urge Congress to take up this legislation. The problem of toxic chemical exposure is much too large for individual consumers, manufacturers, retailers or even states to handle on their own. We need a robust national law that protects our kids from toxic chemicals. Moms Clean Air Force will continue to work to ensure that we get reform that truly leads to an era in which mothers everywhere can trust the safety of the products we are buying.
How bad is our current law, the 1976 Toxic Substances Control Act (TSCA)?
Americans are exposed to thousands of chemicals every day. Tens of thousands of chemicals on the market have never been evaluated for their safety. And hundreds of new chemicals enter the market each year with inadequate evaluation of their health impacts.
Our current law is 40 years old, and has never been updated to reflect all that scientists and doctors have learned about how chemicals enter our bodies, and what continued daily exposure, even in minute doses, can do to us over time. The law has not been updated to cover what we have learned about fetal development, and about how chemicals pass from mothers into their babies.
From the outset, TSCA didn’t work. The law has been so ineffective that EPA has been nearly powerless to restrict known deadly carcinogens such as formaldehyde,lead and even asbestos, which kills 10,000 Americans every year.
Some states regulate some chemicals. They have provided leadership for greater protections. But this patchwork does not protect all Americans everywhere.
Why should I care about chemicals in my products?
Science has linked common chemicals to diseases such as childhood cancers; infertility; asthma; diabetes; and Parkinson’s disease.
Some chemicals are disrupting the way our endocrine systems function, and as a result, they may negatively interfere with reproduction, behavior, and metabolism. Such chemicals are found in nearly everything we use: cleaning products, clothing, furniture.
Why do we think this bill is better than the current law?
This bill offers some major improvement over current law:
A requirement to review all chemicals. The new bill would shift how EPA determines whether a chemical is safe. Under current law, chemicals are assumed to be safe, and can be used in products—often until people start getting sick. Even then, given how many chemicals we are exposed to every single day, it is very difficult to pinpoint what might be causing a problem and so nothing is done. We become the guinea pigs for the industry. When the old law was created in 1976, it grandfathered in 62,000 chemicals that have never been reviewed for safety. Under the new bill, EPA is required to review all the chemicals in commerce and determine their safety.
A health-based safety standard. The new bill would establish a health-based safety standard. Right now, EPA has to include cost considerations in its evaluations of chemicals. This burdensome safety standard compromises public health. Under the new bill, EPA would have to evaluate whether chemicals are safe based on considerations of health alone – not cost.
Consideration of vulnerable populations. The new bill would require that EPA consider vulnerable populations in its safety assessments, and would have to ensure they are protected when imposing restrictions on a chemical. This would help protect infants and pregnant women from toxic chemical exposures.
High priority chemicals. The new bill would require EPA to create a list of high-priority chemicals. All high-priority chemicals must undergo safety determinations. Initially, at least 10 chemicals would be put on the high priority list. EPA could start with chemicals already on its current “work plan” on day one to jumpstart its effort. Within five years, a minimum of 25 chemicals must be on the high priority list. For chemicals that fail the safety standard, EPA must ban them or restrict their production and use in a manner sufficient to ensure that they meet the safety standard.
As final action is taken on a high-priority chemical, it must be replaced with at least one new one for assessment.
New chemicals must be affirmed likely to be safe before they can get on the market. Under the new bill, chemicals would be allowed to be registered and sold only if EPA makes an affirmative finding that they are likely safe. Our current law shuttles hundreds of chemicals every year onto the market with only a perfunctory safety review; only if EPA finds a problem can it restrict market entry.
Enforceable timelines. The new bill has judicially enforceable deadlines for EPA decisions. For each step along the way of assessing chemicals, the new bill imposes deadlines the agency must meet, and gives us the ability to hold them accountable to this work.
Limits on chemical secrets. Under the new bill, more information would be made available about chemicals, by limiting companies’ ability to claim information is confidential, and by giving states and health and environmental professionals access to confidential information they need to do their jobs. Today, under our broken law, companies are free to claim just about any information confidential and the EPA can’t share that information with public health professionals or state agencies.
Do we think this is the perfect bill? No. That’s because it represents a compromise.
In these hyper-partisan times, compromise might sound quaint, but compromise is more necessary than ever if we are to get the bipartisan support any bill needs to pass.
After evaluating all the compromises made on both sides, we get down to one essential question: Is this bill better than current law? We think it is.
How can we make this bill stronger?
1. Timing of state preemption
We will work to change the timing at which preemption of new state requirements for high priority chemicals kick in. In this version of the bill, any new state actions to restrict a chemical can’t be taken if and when EPA designates a chemical high-priority, and sets the scope of its assessment. A potentially long period of up to seven years could pass before EPA determines what to do with a chemical, during which states could not take new actions to address that same chemical for the same uses. (Actions they had already taken would remain in place until EPA took final action on the chemical.)
While we know that the market place might shun a chemical whose safety was being questioned, and that might help keep it off shelves, we also know that we operate in a world in which we don’t know what chemicals are in our products. We cannot count on consumer boycotts.
We believe that state efforts to restrict a high priority chemical should not stop until EPA has made and announced its decision about the safety of that chemical.
2. State co-enforcement of federal law
The bill has taken away the states’ rights to co-enforce federal regulations. Co-enforcement is standard procedure in environmental laws. Given that EPA faces annual budget cuts, additional resources to ensure compliance are welcomed. We believe that states should be able to continue to enforce requirements EPA places on a chemical. More ‘cops on the beat’ means more safety for our citizens.
We will work to restore the ability of state governments to enforce federal requirements.
3. Number of chemicals to be reviewed
We believe that EPA can be required to pick up the pace of chemical review in the first five years, so that at least 40 chemical assessments will be underway by then, rather than the minimum of 25 now called for.
We will wage this fight while maintaining bipartisan support for the bill.
It’s time to protect our kids from untested, potentially harmful chemicals.
Tell me more about state preemption?
“State preemption” means that once a federal law is in place, it overrides state laws.
Here’s how the Lautenberg Act would affect state restrictions on hazardous chemicals.
There are basically three categories:
1. All actions taken by January 1, 2015, would be preserved in their current form under the new bill -- and never preempted regardless of what EPA does subsequently. Most of the nearly 200 laws that address toxics in consumer products, enacted in 33states, would remain on the books.
California has the strongest chemical laws in the country, including its robust Prop 65 program. Prop 65 would be preserved in its current form under the new bill.
2. Chemical laws enacted after 1/1/15 would stay in place unless EPA designated as high priority a chemical that had been restricted or banned. The state law would then remain in place until EPA took final action on that chemical; and only uses of that chemical within the scope of the EPA’s assessment would be preempted.
3. Once EPA named a chemical high priority, a state could not impose a new requirement that addressed uses of that chemical within the scope of the EPA’s assessment. EPA would be required to determine the scope within 6 months of a high priority designation. States would remain free to act on any other use of a chemical outside that scope. (It is in this third category that we would like to see improvements.)
Preemption of state laws would impact restrictions of chemicals. States could apply for waivers to allow them to impose restrictions beyond EPA’s, but the waiver requirements are fairly onerous.
Many states have taken many other types of actions on chemicals, such as reporting of use, assessments, prioritization and monitoring. None of these actions would be preempted.
If EPA designates a chemical as “low priority,” states would be allowed to act on that chemical. The limits on state authority only apply to “high priority” chemicals.
The proposed system is a compromise that would limit state power in some important ways, while helping to protect people who live in states without any state-level chemicals policies.
But it’s also important to remember while the federal government’s regulations on “high priority” chemicals would preempt state restrictions, in the absence of robust federal action, even under the new bill, states can continue to take action.
How many chemicals have been regulated by state programs?
About 12 chemicals or groups of chemicals have had some restriction by the states, according to our analysis. This is in totality over time. Here’s the list:
- Arsenic compounds*
- Chromium compounds*
- Copper compounds*
- Certain Phthalates
- Certain Brominated Fire Retardants
- Certain Chlorinated Fire Retardants
[*These include Hexavalent Chromium and Chrominated Copper Arsenate.]
How does this bill affect chemical programs in California?
California has passed 16 laws that affect 10 chemicals regulated under TSCA and another 6 laws restricting chemicals in cosmetics, food and some baby products—which wouldn’t fall under TSCA authority.
For starters, ALL 16 laws that overlap with TSCA would be grandfathered in.
But let’s pretend that all of these laws were adopted after the Lautenberg Act became law. Under this hypothetical situation, what would happen?
9 of the 16, because they included restrictions, could be preempted if and when EPA took final action on the same chemical for the same use.
5 of the 16 would never be preempted because they don’t include restrictions of chemicals. Many states have laws that require reporting of chemical use and disclosure of chemicals in products. Such actions by the states would never be preempted under the bill.
Importantly, Proposition 65, the California law that provides a listing of carcinogens and reproductive toxins and requires businesses to notify the public about the presence of such substances, is protected for both past and future decisions under that state law.
The most recent law passed in California, the Green Chemistry Initiative, establishes a program that prioritizes chemicals in products, and has the authority to place restrictions. The state has not yet made any restrictions, but if they were to, if and when EPA takes up the same chemical for the same use, the federal government would preempt the state.
The other 6 would not be affected because they fall outside of EPA’s domain.
How does this bill affect chemical laws in New York state?
New York has enacted 11 laws to regulate toxic chemicals.
Just like in California, ALL of these laws will remain intact under the Lautenberg Act since all laws enacted prior to 2015 are grandfathered in.
6 of the 11 laws include chemical restrictions or bans.
So, this means if we assumed for hypothetical purposes that these New York laws were adopted after the Lautenberg Act became law, then,
6 laws could be preempted if and when EPA took final action on the same chemical for the same use.
3 of the 6 seek to ban chemicals in child products and would either be completely unaffected or only partially affected
5 of the remaining laws would be untouched by the Lautenberg Act because they either address chemicals in products not regulated under TSCA, or they include actions that are never preempted under the Lautenberg Act, such as purchasing policies, listing of chemicals, or information gathering.
How does this bill affect chemical laws in Massachusetts?
Again, by our count, Massachusetts has enacted 5 laws to regulate toxic chemicals.
ALL of these laws will remain intact under the Lautenberg Act, as all laws enacted prior to 2015 are grandfathered in.
3 of these laws include chemical restrictions or bans. So again, what if we assumed for hypothetical purposes that these Massachusetts laws were adopted after the Lautenberg Act became law? If Massachusetts were to enact similar laws to restrict specific chemicals in the future, such actions could be preempted if EPA were to take final action on the same uses of the same chemical.
Two of the 5 laws ban chemicals in products such as child products and toys. These laws, under this hypothetical scenario, would only be partially affected by TSCA reform.
What about "low priority" chemicals?
EPA may deem chemicals “low priority.” Under this new bill that means that EPA must affirmatively find and publicly justify that a chemical is “likely” to meet the safety standard based on “sufficient information” in order to designate it a low priority. The criteria and process EPA is to use to make these assignments must be developed in a rule that is open to public comment and can be challenged in court if deemed inadequate.
Decisions to prioritize a given chemical as high or low must be made public, and subjected to public comment.
Low priority chemicals that are set aside can still be judicially challenged by states that disagree with EPA’s designation, and states may regulate low priority chemicals in any manner they wish.
How does this bill keep toxic chemicals out of things like my furniture, bedding, or carpeting?
A new provision in the bill has raised concerns that EPA will have to jump through extra hoops to regulate an article (sofa, airplane, phone dock) because of concern about chemical exposure from that article. It is true that EPA would need to show significant evidence of exposure in order to regulate an article, but this is something they would be likely to do anyway. But any such requirement should ensure that it does not place an additional burden on the EPA or require them to look at each individual article it is going to regulate.
What happens now?
In addition to Senators Udall and Vitter, the bill is sponsored by 9 Democrats and 9 Republicans: Sens. Joe Manchin (D-WV), Jim Inhofe (R-OK), Tom Carper (D-DE), Roy Blunt (R-MO), Chris Coons (D-DE), John Boozman (R-AR), Joe Donnelly (D-IN), Mike Crapo (R-ID), Martin Heinrich (D-NM), Shelley Moore Capito (R-WV), Heidi Heitkamp (D-ND), John Hoeven (R-ND), Debbie Stabenow (D-MI), John Warner (D-VA), Bill Cassidy (R-LA), Gary Peters (D-OH), Rob Portman (R-OH) and Mike Rounds (R-SD).
The Senate Environment and Public Works Committee held a hearing on the legislation March 18th. The Committee next has to vote on the bill, and finally it goes before the full Senate. A vote in the Senate may come as early as this summer.
As the bill moves through Congress there will continue to be efforts to strengthen the legislation and attempts by the industry to weaken it.
MOMS CLEAN AIR FORCE WILL FIGHT TO ENSURE THAT WE GET THE STRONGEST REFORM POSSIBLE.
WE WILL WAGE THIS FIGHT WHILE MAINTAINING BIPARTISAN SUPPORT FOR THE BILL.
IT’S TIME TO PROTECT OUR KIDS FROM UNTESTED, POTENTIALLY HARMFUL CHEMICALS.