The Danger of Looting the EPA

In many ways, chemicals get a fairer shake in this country than people. Chemicals are presumed innocent until proven otherwise, and the burden of proof is placed on advocates and government officials who are often time- and cash-strapped. Proving that a chemical is toxic is incredibly difficult—studies must be conducted and repeated, results peer-reviewed and verified. It can take up to a decade. And because we regulate chemicals one at a time, as soon as one chemical is proven toxic, it can easily be replaced by a nearly identical cousin.

Bisphenol A (BPA), a chemical commonly found in plastics, including baby bottles and various other items made for babies and toddlers, is the most obvious example. After a host of studies linked the chemical to fertility issues, increased risk for cancers and cardiovascular problems, and impaired brain development, and dozens of high-alert headlines followed, many manufacturers pulled it from their products, quickly filling shelves with new items proudly labeled “BPA free!” Most of them contained a chemical only slightly different from BPA, bisphenol S (BPS), which scientists now know may be just as harmful. Research on the potential toxicity of BPS began in earnest in 2012, and so far none of it is good. A 2013 study by Cheryl Watson at The University of Texas Medical Branch at Galveston found that even very small concentrations of BPS can disrupt a cell’s normal functioning, which could lead to metabolic disorders such as diabetes and obesity, asthma, birth defects, or cancer. But while BPA has been banned in certain products, BPS is still widely used, and consumers opting for BPA-free products because they wish to avoid toxics–many of them parents buying items for their children–have no idea that the label is virtually meaningless.

To avoid regrettable substitutes like BPS, research scientists are lining up behind the idea of regulating chemicals as a class. So, in the case above, all the bisphenols would be regulated, versus first regulating BPA, and then 20 years later BPS, and so on. A recent decision by the Consumer Products Safety Commission, the agency that implements many of the nation’s chemical regulations in the consumer marketplace, moves closer to that approach. In the announcement of its decision on flame-retardant chemicals in children’s products, furniture, mattresses, and electronics cases the CPSC made a significant shift in policy: It banned the entire chemical class of organohalogen flame retardants, not just one particular offender. These toxic chemicals, found in the bodies of 97% of Americans, are used in children’s products, furniture, and electronics, and are associated with cancer, infertility, obesity, reduced IQ and neurological impairments in children, and hormone disruption.

“It will set a precedent of regulating chemicals by class and can prevent harm from exposure to the entire chemical class,” says Arlene Blum, a chemist and activist who has been trying for years to get companies and government officials to embrace a “class strategy” on chemical regulation. She’s succeeded in getting companies, including Ikea, Levi Strauss & Co, Kaiser Permanente, and Crate & Barrel, to get on board, but convincing government officials has proven tougher.

It’s not the first time the CPSC has evaluated a group of chemicals. Back in 2014, the CDC’s warning on phthalates caught the attention of then-senator Barbara Boxer and former U.S. Representative Henry Waxman, who included the class of chemicals in their Consumer Product Safety Bill, passed in 2008. That bill banned the use of some phthalates in children’s products, passed an interim ban on others, and required that the Consumer Product Safety Commission take a closer look at the chemicals.

The resulting report on phthalates was finalized in late 2014, and despite the chemical industry’s efforts to soften the commission’s recommendations, public health advocates were largely pleased with the effort, a rarity when it comes to government-penned reports on chemical safety.

“The fact that the commission is looking both at phthalates as a group and at the toxicology of individual phthalates is really important,” says Erik Olson, director of the Natural Resources Defense Council’s health program. Olson was the deputy staff director for the U.S. Senate’s Environment and Public Works Committee when the Consumer Product Safety Bill was written and passed. Between the CHAP report and a National Academy of Sciences report looking at phthalates as a class, Olson says momentum behind a class-based approach to understanding the impact of chemicals on human health has been building.

Another recent step forward in this battle came earlier this year via a proposed update to the Food, Cosmetics and Drug Act from Senators Dianne Feinstein (D-Ca) and Susan Collins (R-Me), which would give the Food & Drug Administration authority to review an entire class of chemicals for safety. “That would set a really important precedent, and could move us away from the sort of chemical whack-a-mole that the current regulation sets us up for,” says Janet Nudelman, policy director for Breast Cancer Prevention Partners.

Despite some recent wins, health advocates face fierce opposition from the Trump Administration when it comes to improving chemical regulation. The legislation governing most chemicals that consumers come into contact with is the Toxic Substances Control Act (TSCA). After years of fighting between trade groups and activists, a watered-down update of the act finally passed last year, but Scott Pruitt has put Dr. Nancy Beck, former director for the American Chemistry Council—the primary trade group for the chemical industry—in charge of implementing those updates.

“Any reasonable person would see a conflict here, one sufficient to seriously question whose interests Dr. Beck will be representing in playing such a role in TSCA implementation,” Richard Denison, lead scientist at the Environmental Defense Fund wrote recently.

“Nor does this situation bode well for the prospect of creating a credible federal system capable of restoring public and market confidence in the safety of chemicals – which was the key reason that such strong bipartisan and stakeholder support gelled behind the major reforms made to TSCA just last June,” Denison continued. “Placing a key chemical industry player in a position where she will now have direct and major influence over the direction that reform will take raises serious new doubts about the industry’s claims that it supports providing EPA with stronger, independent authority and resources to vigorously establish the safety of chemicals in and entering commerce.”

Consumers and companies that wish to avoid toxic chemicals can take matters into their own hands and steer clear of potentially toxic chemicals–if they know how to spot them–but ultimately without government oversight, Americans can only protect themselves so much. Blum says chemical flame retardants that she helped get banned from kids pajamas and then furniture are now in building insulation and electronics, their presence completely unseen by consumers. Similarly, phthalates can find their way into various food items without consumers knowing. “The fact is you can’t know if a food has phthalates in it – you can suspect, but it’s almost impossible to know,” Olson says. “That makes them hard to avoid, which is why you need a regulatory framework.”