Rebuilding the Consumer Product Safety Commission’s Nano Tool Box

John BalbusCal Baier-Anderson, Ph.D., is a Health Scientist.

I have just finished reading yet another depressing/infuriating publication by the Woodrow Wilson Center’s Project on Emerging Nanotechnologies. The new report delineates the many limitations faced by the Consumer Product Safety Commission (CPSC) in addressing nanotechnology health risks.  The law governing the CPSC has significant weaknesses that prevent it from meeting critical needs, such as constraints on the ability to collect data, require reporting of known hazards, order recalls and promulgate mandatory safety standards.

The PEN report includes several recommendations that CPSC maximize its regulatory authority under the Consumer Products Safety Act (CPSA), and to coordinate with EPA and FDA.  The report also calls on Congress to amend the CPSA to strengthen the regulatory hand of the agency.  On paper, this seems relatively simple yet implementation will require significant political will – an attribute that seems to be in short supply these days.  That’s why I’m depressed.

I’m infuriated because of the many ways PEN identifies in which a law that was conceived to protect public health has been eroded, including amendments that limit agency power (pages 15 and 17), insufficient funding (and even a political appointee who rejected funding increases) (pages 10 and 13), and inadequate staffing for enforcement (pages 16 – 17).   This neglect spans more than two decades.  With such an inglorious history, it’s hard to be optimistic that change will come.

These systemic weaknesses also affect the capacity of CPSC to address hazards from conventional chemicals, with the continuing effect of toxic ignorance reinforced in the PEN report.  Of course, nanomaterials come with unique challenges relative to conventional chemicals, since nanomaterials can vary greatly in chemical composition as well as physical shape and design that can affect all aspects of health and safety risk.  As PEN’s Andrew Maynard notes in his recent blog, consumer products are most likely to be the point of consumer exposures.  EPA and FDA face similar difficulties in the regulation of chemicals – and nanomaterials – used in consumer products and cosmetics. The government definitely will need some new tools in the tool box.

It is becoming increasingly clear that appropriate reform of the Toxic Substances Control Act (TSCA) can also help boost the ability of CPSC and other federal agencies to address the challenges of nanomaterials and other emerging chemicals of concern.  The Kid Safe Chemicals Act (KSCA) would substantially amend TSCA.  Among other provisions, it would require manufacturers to submit to EPA a minimum dataset on a chemical’s uses, environmental and human health hazards, and exposure potential, including information critical to assessing nanomaterial risks.

All agencies would benefit from access to the “go-to” database that KSCA calls for.  This basic chemical information could be used by any agency to help identify and prioritize hazards relevant to its mission.  CPSC could use this information to help identify chemicals of high concern for children – be they nano-scale or not.  FDA could use the database to determine if some of the most commonly used chemicals in cosmetics, which also have uses that fall under TSCA, require scrutiny.

Since the publication of the PEN report, Congress amended the CPSA to strengthen protection of children from harmful products.  In addition to essentially banning lead and certain phthalates from children’s products, the CPSC will receive increased funding to boost staffing level, and laboratory and computer resources.  The CPSC will create a consumer-accessible database of safety concerns associated with products, and states will have the authority to enforce the CPSA.

What’s not clear is if these important and necessary upgrades to the CPSA will substantially improve the capacity of the CPSC to monitor and address any safety concerns that may be associated with nanotechnology in consumer products.  While the amendment directly tackles several notorious chemicals of concern, it does not appear to consider how the CPSC might generally respond to emerging concerns, such as those posed by new synthetic chemicals or novel technologies.  Time will tell if we have been given duct tape to patch holes rather than the hammer and nails required for new construction.

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