{"id":5860,"date":"2016-12-02T09:18:26","date_gmt":"2016-12-02T14:18:26","guid":{"rendered":"http:\/\/blogs.edf.org\/health\/?p=5860"},"modified":"2024-02-12T11:01:53","modified_gmt":"2024-02-12T16:01:53","slug":"new-chemicals-under-the-new-tsca-growing-pains-now-but-a-stronger-system-going-forward","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2016\/12\/02\/new-chemicals-under-the-new-tsca-growing-pains-now-but-a-stronger-system-going-forward\/","title":{"rendered":"New chemicals under the new TSCA: Growing pains now, but a stronger system going forward"},"content":{"rendered":"

Richard Denison, Ph.D.,\u00a0<\/em>is a Lead Senior Scientist.<\/p>\n

In the many conversations I have had over these last many years about the Toxic Substances Control Act (TSCA), the single thing that most resonated with people about why the old law didn\u2019t work was about new chemicals. Folks were stunned when they learned that the old law didn\u2018t require our government to review chemicals and determine they were safe before<\/em> they were allowed onto the market.\u00a0 People simply assumed this was the case and were shocked to find it wasn\u2019t.\u00a0 I heard repeatedly, what could be a more basic need to ensure protection of the public\u2019s health?<\/p>\n

That is why many in Congress worked so hard to drive improvements to the new chemicals provisions in the new law \u2013 that, and a clear understanding of the many ways in which the old law hamstrung EPA when it came to new chemicals.\u00a0 In my view, these reforms and robust implementation of them by EPA are absolutely essential to the task of restoring public and market confidence in our national chemical safety system \u2013 the shared objective that allowed disparate stakeholders and lawmakers to come together to support the Lautenberg Act.<\/p>\n

[pullquote]For too long, economic factors have dominated over the public\u2019s right to expect that chemicals to which they may be exposed will not be allowed into use without adequate assurance of their safety.\u00a0 That has undermined consumer confidence in our chemical safety system.\u00a0 The public understands that the most efficient and effective stage at which to provide assurance of safety is before<\/em> commercial production and use begins, rather than waiting and then having to try to mitigate risks that arise after a new chemical is embedded in commerce.[\/pullquote]<\/p>\n

I have blogged previously <\/a>about why the new chemicals reforms in the new law represent a balanced approach, on the one hand, ensuring that the safety of new chemicals is carefully examined and a reasonable assurance of safety is provided before market entry; and, on the other hand, ensuring an efficient process that doesn\u2019t unduly slow or create too high a bar for market entry.<\/p>\n

Of course, even as it has supported the new law\u2019s balanced reforms, the chemical industry did and continues to assert that the old new chemicals system worked just fine.\u00a0 I\u2019ve always maintained that\u2019s because it rarely required much of them. \u00a0\u00a0It\u2019s not wholly surprising, therefore, that the industry is expressing angst over EPA\u2019s implementation of the new requirements.\u00a0 Change is hard.<\/p>\n

Bear in mind also that the new requirements of the law not only changed the status quo significantly, they also became effective immediately upon passage of the law, without any time given to EPA to migrate to the new regimen.\u00a0 That, too, has been a source of the growing pains felt by both EPA and the regulated community.\u00a0 Abrupt change is even harder.<\/p>\n

But a broader and longer view of the new law is called for.\u00a0 The bulk of this post will describe why EDF believes that EPA\u2019s implementation to date is not only consistent with the new law but in fact mandated by it, and why, despite initial growing pains, the new system will be a major improvement over the long run for both public health and business. \u00a0But first … \u00a0<\/p>\n

Playing the \u201cdon\u2019t-stifle-innovation\u201d card<\/strong><\/p>\n

But before doing so, I want to briefly address an overarching argument that industry uses to try to lend greater weight to its complaints about EPA\u2019s actions under the new law:\u00a0 that those actions threaten to impede innovation<\/em>, which they assert is directly at odds with Congress\u2019 intent under TSCA.<\/p>\n

This claim relies on the only reference to innovation in all of TSCA, in a list of the law\u2019s policy intentions (section 2(b)(3)<\/a>, same language in both the old and new law).\u00a0 Industry typically paraphrases this provision as saying that, under TSCA, EPA shouldn\u2019t act in a manner that impedes innovation.\u00a0 But that is a selective reading of the actual provision; I quote it in its entirety below (emphasis added):<\/p>\n

(b) POLICY.\u2014It is the policy of the United States that\u2014<\/p>\n

\u2026<\/p>\n

(3) authority over chemical substances and mixtures should be exercised in such a manner as not to impede unduly or create unnecessary economic barriers to technological innovation while fulfilling the primary purpose of this Act to assure that such innovation and commerce in such chemical substances and mixtures do not present an unreasonable risk of injury to health or the environment<\/u>.<\/p>\n

Given that the development and application of new chemicals are a clear source of innovation, how else is that primary purpose of TSCA \u2013 providing an \u00a0assurance that innovation and commerce in chemicals do not present unreasonable risk \u2013 to be provided other than through robust scrutiny of new chemicals prior to their commercialization?<\/p>\n

Congress clearly got it that innovation without safety doesn\u2019t really qualify as innovation.<\/p>\n

New chemical reviews under old vs. new TSCA<\/strong><\/p>\n

The Lautenberg Act made five major improvements to the new chemicals provisions of TSCA, each of which addressed a critical flaw in the original law:<\/p>\n