History was made this week. Major environmental legislation was signed into law for the first time in nearly 25 years, updating the Toxic Substances Control Act (TSCA), the primary U.S. chemical safety law, and putting in place a new foundation of federal oversight for chemicals being used in the marketplace. It took the right conditions and a lot of hard work – including bold action from the retail and manufacturing sectors to answer consumers’ call for safer products – to get here.
Now, as this new law gets implemented, industry is headed for a new status quo on how chemicals are evaluated and approved for use. What does that mean for those companies already on the safer chemicals journey?
Fertile Ground for Safer Products
This new piece of legislation –The Frank R. Lautenberg Chemical Safety for the 21st Century Act – amends for the first time the core provisions of TSCA, originally passed in 1976. It requires new chemicals to clear a safety bar before entering the market, and mandates safety reviews of all existing chemicals by the U.S. Environmental Protection Agency (EPA).
Many consumers assume this has been occurring all along. If a product has reached a retailer’s shelves, someone must have reviewed its chemical ingredients for safety, right? But this hasn’t been the case. When TSCA was signed into law, it grandfathered in the 64,000 chemicals then in use as “safe.” The law didn’t mandate review of new chemicals entering the market, either. And it put the entire burden on EPA to find evidence of harm in order to restrict market entry. The updated law will for the first time give EPA the authority and resources to review both new and existing chemicals and make affirmative decisions about their safety, along with new authority to more easily obtain information necessary for conducting these reviews.
Under the Lautenberg Act, EPA will first focus on “high priority” chemicals, such as those classified as known human carcinogens, highly toxic, persistent in the environment or bioaccumlative (able to build up in the bodies of animals). In assessing the safety of chemicals, EPA must consider risks to vulnerable populations such as children and pregnant women. EPA can only consider the health and environmental impacts of the chemical—leaving consideration of costs or availability of alternatives to the next step when EPA is determining how to manage a chemical’s risks. The law also puts strong new limits on what information can qualify as ‘confidential business information,’ striking a balance between the public’s right to know about chemicals to which they may be exposed, and proprietary interests in chemical information important, for example, to innovation.
Accelerating a Company’s Safer Chemicals Journey
These changes will increase corporate incentives to document the safety of chemicals, good news for businesses committed to safer chemicals leadership. More information will better position companies to make informed decisions about what chemicals to use and not to use in their products.
With tens of thousands of chemicals currently on the market, change won’t come overnight. On the other hand, consumer expectations for chemical safety and transparency will continue to rise. Product companies and retailers demanding more evidence of safety and access to more information they can use to go beyond compliance will help drive the whole system, which helps raise the floor.
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Companies Must Still Lead the Way
By going beyond compliance and continuing to place a premium on finding ever-safer alternatives, leading companies can distinguish themselves among consumers and help raise the ceiling. With regulatory certainty, companies are better positioned to define and implement progressive chemical policies.
Passage of the Lautenberg Act is an important step on the safer chemicals journey; the government will finally be able to do a better job of protecting consumers. But companies remain a much-needed partner in making safer products the new status quo. The question leaders will strive to answer is, “How do we continue to make our products safer, affordable, and more sustainable?”
Consumers will be watching carefully to see which brands offer products that are better for them and their families. Now that the regulatory bar for safer chemicals is set higher, companies need to seek out new ways to innovate if they want to differentiate themselves, stay competitive in the marketplace and continue to earn consumers’ loyalty.
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