Tens of thousands of chemicals are used in the products that we purchase and use every day. It may come as a surprise to many that the vast majority of those chemicals are not now, and never have been, regulated.
Chemicals are everywhere in our lives, and not just in steaming test tubes. They’re in all kinds of consumer products including baby bottles, booster seats, furniture stuffing, soda cans and much more. Some of them are either suspected or known to cause cancer, heart problems, asthma and other life-threatening illnesses. Consumers can’t run toxicity tests on every product they buy, of course. That’s why the law should require manufacturers to test their chemicals and report their findings to the public.
But the Toxic Substances Control Act, the federal law governing the use of chemicals in commerce, leaves the Environmental Protection Agency with precious little authority to make this happen. By its terms, chemicals are presumed to be safe unless the EPA can muster evidence that they’re not, and only then can it order testing.
Think about that for a second, and you’ll see the problem: The EPA can’t order testing of chemicals unless it has the sort of evidence of risk that only testing can produce.
Even when a chemical has been tested and shown to be harmful to human health, such as asbestos, the EPA is effectively powerless to ban its use. The World Health Organization, the surgeon general and the EPA have all declared that exposure to asbestos is unsafe at any level. When the EPA attempted to regulate asbestos, its ban was invalidated by a single activist court, which found that it did not meet the steep requirements of the TSCA.
A chemical like asbestos, which is known to cause lethal illnesses, presents an obvious danger to public health, but the EPA is hamstrung by the statute’s language, which forces it to weigh the costs to industry of regulating a chemical against the benefits of banning its use. The EPA must prove that a chemical demonstrates an “unreasonable risk to human health and the environment” before it is regulated by the agency.
As a result, since the TSCA was adopted in 1976, the EPA has issued testing orders for only about 200 chemicals out of 80,000 approved for use, and it has banned just five.
After decades of legislative inaction to address the TSCA’s glaring deficiencies, Congress is finally considering legislation to fix that broken statute. Unfortunately, the bill now moving in the Senate, the Chemical Safety Improvement Act, would lock down the “unreasonable risk” standard the EPA is now forced to use to prove that a chemical is unsafe. What’s even worse, rather than eliminate that barrier, the new bill imposes dozens of new ones, without increasing the EPA’s budget.
As a result, an already strapped agency will have to jump through still more hoops, not fewer, to ban or otherwise regulate potentially toxic chemicals. Real toxic chemical reform would shift the burden of proof onto chemical manufacturers to demonstrate the safety of their products, with the EPA empowered to prioritize public health over the profits of the chemical industry.