Why Chemicals in the U.S. Are Still “Innocent Until Proven Guilty”

Last month, President Barack Obama signed a chemical bill that was meant to solve a problem few people knew they had. That problem was the substandard safety of everyday chemicals—an issue that affects anyone who uses household cleaners, has a couch or wears clothing. In a month filled with dramatic political news, this seemingly small legislative achievement received little media attention. Yet it actually represents a major reform, providing the decades-old Toxic Substances Control Act (TSCA) with a much-needed retrofit.

In the European Union, safety laws guarantee that both industrial and household chemicals are vetted for their potential risks to human health and the environment before they appear on the market. In the United States, however, chemicals are generally “innocent until proven guilty”—a maxim that’s good for people, but bad for potential toxic chemicals. Scientists at the Environmental Protection Agency have found that the majority of chemicals in use today have not been sufficiently examined for human health toxicity or environmental exposure. How can this be?

Originally passed in 1976, the old TSCA was meant to help the EPA regulate the safe production and use of industrial chemicals. But the act was founded on scientific assumptions and practices that are far outdated today. Perhaps worse, TSCA also grandfathered in a long list of “existing” chemicals—which made it extremely difficult for the EPA to pull them from the market even if they were later shown to be harmful. (It has been easier for the EPA to require companies to develop data on chemicals that are new to the market, but many hurdles still exist.)

As a result, people have been exposed to toxic chemicals left under-regulated by the EPA for decades—with devastating effects. This has been the case since 1989, when a federal court overturned the EPA’s ban on asbestos, one of the best-known carcinogens ever used. Since then, the EPA has never attempted to completely pull an existing chemical from the market. Lead, which is known to harm children’s brain development at extremely low levels and was banned from use in house paint in 1978, is still used in ammunition and some industrial manufacturing.

Newly developed chemicals approved by the EPA through the TSCA review process have also proved to be hazardous. FireMaster 550, a flame retardant, was developed as a supposedly safer replacement chemical after the leading flame retardant for furniture foam was banned in several states and pulled from the market. Yet in 2012, after being reviewed and approved for use by the EPA in 1997, scientists were uncovering evidence that it was a neurotoxic obesogen (a compound that can lead to weight gain by altering fat metabolism).

Despite the fact that the EPA has recently labeled FireMaster 550 to be of “high” or “very high” concern for reproductive, developmental, neurological and aquatic toxicity, it remains on the market. In fact, today it's still praised by its manufacturer as “an innovative move to greener chemicals.”

Responding to these failures, public health advocates have been pushing for TSCA reform for decades. Activists pursued an uneven “patchwork quilt” of regulations that made it hard for chemical manufacturers and retailers to stay ahead of chemical restrictions around the country. As an advocacy leader from the manufacturing industry told me in an anonymous interview for my book on the topic: “We would like to have a level playing field across all 50 states, and have preemption over anything a state might try to develop.” To push for their preferred version of TSCA reform, the chemical industry spent more than $125 million on lobbying since 2014.

The new act ensures that the EPA will now prioritize and evaluate chemicals based on risk, not cost-benefit calculations. In other words, the agency has to affirm the expected safety of newly developed chemicals. The act also somewhat reduces chemical companies’ abilities to hide important data behind the veil of “confidential business information.” In addition, the act requires that the EPA rely less on animal testing and more on high-throughput testing and screening—guidelines that are not only more humane, but are in line with recent developments in toxicity research in recent decades.

These are all major strides. “The general consensus is that this bill is ‘better than current law,’” notes Nancy Buermeyer of the Breast Cancer Fund, a nonprofit that aims to prevent environmental causes of cancer, including toxic chemicals. But it still “falls far short” in important ways, she says, as should be expected from any piece of legislation so enthusiastically supported by the industry it is charged with regulating. The act requires risk evaluations of only 20 high-priority chemicals at a time, a fraction of the more than 80,000 chemicals currently on the TSCA inventory. It also preempts states from enacting their own restrictions on potentially dangerous chemicals as soon as EPA begins its review, even though such reviews can take years, and bars future action on EPA-evaluated chemicals with few exceptions. 

Ultimately, the effectiveness of the act will come down to how it is implemented. The EPA has already released a timeline for the next year. Of particular note is the establishment of a “Science Advisory Committee on Chemicals,” which is meant to provide independent expertise and consultation to the EPA. These efforts by EPA scientists, federal regulators and involved stakeholders like the chemical industry and environmental advocates will determine whether the agency can achieve its goal of evaluating chemicals based on the “best available science.”

The new law is a step in the right direction, but it remains to be seen whether it will do enough to hold potentially harmful chemicals accountable. 

Alissa Cordner | READ MORE

Alissa Cordner is an assistant professor of sociology at Whitman College and author of Toxic Safety: Flame Retardants, Chemical Controversies, and Environmental Health.