Some Things Never Change: The Chemical Industry Still Opposes Real Safe Chemicals Legislation

This month, New Jersey Senator Frank Lautenberg and New York Senator Kristen Gillibrand introduced the Safe Chemicals Act, for the new Congress.  The bill would repair a badly broken federal law – The Toxics Substances Control Act (TSCA) – which has failed to protect the public from a lifetime of daily exposure to hundreds, if not thousands of un-regulated chemicals in commercial and consumer products.  While dozens of chemicals have been linked to a range of health effects including cancer, asthma, learning disabilities and infertility, the EPA has been unable to effectively regulate most chemicals – including those used in household cleaners, toys, furniture, paint, building materials, art supplies and diapers --or even to require the chemical industry to provide data on their safety.

The Safe Chemicals Act would set a safety standard for new and existing chemicals to protect public health, and provide EPA the authority to gather the information it needs to assess the safety of chemicals, and to share that information with the public.   The Safe Chemicals Act would also direct EPA to take action first on chemicals that have already been established to be unsafe – including those that are “persistent, bioaccumulative and toxic” (PBT) – that last for many years in the environment and build up in our bodies.  In short, the Safe Chemicals Act would reform TSCA and help us start digging out of the hole dug by failing to meaningfully regulate industrial chemicals for decades.  Doing so would encourage innovation toward production of safer chemicals, reduce or eliminate exposure to many toxic substances, and – ideally – reverse the upward trends of chronic disease and disability that affect so many lives.  Last week, the American Academy of Pediatrics endorsed the Safe Chemicals Act. 

Senator Lautenberg introduced his first version of this legislation in 2005.  At the time, he had six co-sponsors.  Five of the six original supporters—Senators Jim Jeffords, Hilary Clinton, John Corzine, John Kerry and Ted Kennedy -- are no longer in the Senate (only Environment Committee Chair Barbara Boxer remains).  When the bill was introduced in the 112th Congress, in April 2011, it had only 4 co-sponsors.  But this time it had 27 original co-sponsors in addition to Senators Lautenberg and Gillibrand!

Meanwhile, the chemical industry – led by its largest and most influential companies – Dow, DuPont, Procter & Gamble, and Exxon among them – has steadfastly stood in the way of reform for years.  Prior to 2009, the industry disputed that there was any problem with TSCA, though EPA has only partially regulated 5 chemicals out of 62,000 that were “grandfathered” in when the law was passed 1976.  In 2009, after President Obama was elected and the Democrats won both the House and the Senate, the industry made an artful PR pivot, suddenly conceding that the TSCA law needed to be “modernized.”  Over the past five years, the chemical industry has publicly adopted the rhetoric of negotiation and compromise while privately waging war to prevent any actual compromise from occurring. Just last summer, the Safe Chemicals Act was voted out of the Senate Environment and Public Works Committee – the first measure to reform TSCA to advance out of a Congressional Committee in 36 years -- with all Republican members siding with the chemical industry in opposing it. 

The chemical industry had rolled the dice on the prospect of a Republican take-over of the Senate, and the possible defeat of President Obama in his quest for a second term.  Either result would likely have doomed efforts to advance real chemical reform legislation.   Luckily for people who would like to see toxic chemicals regulated, the chemical industry rolled snake eyes.  This year, the next step forward in the quest to break the chemical industry’s grip on Washington will take place – a Senate floor vote on the Safe Chemicals Act.

The chemical industry is now scrambling for a new tactic to blunt the momentum of the reform effort: introduce its own version of “reform” legislation, co-authored by the industry and its top Senate supporter, David Vitter (R-Louisiana) and, crucially, pressure one or more vulnerable Senate Democrats up for re-election to add their names to the bill, thus giving the industry bill a thin veneer of  “bipartisan” credibility.  And the industry will spend tens of millions of dollars in its effort to build support for Senator Vitter’s faux-reform bill.  Recall that in 2011, the industry’s major trade association spent $10.3 million on federal lobbying while Dow Chemical alone spent an additional $7.3million. [subscription required]  And that doesn’t even count campaign contributions, advertising, or state-level lobbying.  Between 2005 and mid-2012 the industry spent some $330 million lobbying members of Congress.

The public outside the Washington beltway is unlikely to be fooled.   In the first place, the industry’s credibility is seriously undermined by its decades-long continuing record of opposing meaningful regulation or even basic hazard assessments of toxic chemicals.  Few people trust the chemical industry, and those not receiving campaign contributions aren’t even pretending to.

As most people know, the Supreme Court has ruled that under the law “corporations are people.”  If that’s true, then some of our biggest chemical companies are like the proverbial used car salesman, only less trustworthy and with even more secrets to hide. It is useful to have this in mind when taking-in the chemical industry’s response to the introduction of the Safe Chemicals Act.  Cal Dooley, the top spokesman for the trade group representing major chemical companies, said in a statement: “We thank Senator Lautenberg for his continued commitment to this important issue.”  Pretty straight forward.  Sounds nice and respectful.   But, it’s completely disingenuous.  In fact, just last year, in a conversation with environmental groups, Mr. Dooley insisted that a condition of discussing potential areas of compromise on TSCA reform was relegating Senator Lautenberg to the margins, if not excluding him entirely.  That followed on the heels of a hearing in the Senate Environment Committee in which Mr. Dooley refused Senator Lautenberg’s request to offer any suggestions on how to improve or amend the Safe Chemicals Act.  And the chemical industry has consistently failed to admit or credit Senator Lautenberg with either his extensive outreach to Republican members of the Senate and to the industry itself, or to acknowledge the substantial changes that have already been made to address the industry’s concerns.

Meanwhile, the industry has pretended to have an arms-length relationship with Louisiana Senator David Vitter, who will be the lead sponsor of the industry-written alternative to the Safe Chemicals Act.  In recent statements, Mr. Dooley has expressed optimism about the contents of the Vitter bill, while claiming not to have seen a draft.  The truth is that lobbyists for a handful of chemical companies – including Dow, DuPont, and Exxon -- have been meeting with Senator Vitter’s office for close to a year to write the bill.  So when Mr. Dooley plays coy about the contents of the bill -- “I can’t wait to see what’s in it!” – It is just another example of the chemical industry’s fundamental dishonesty.

One of the chemical industry’s major talking points against the Safe Chemicals Act is that the safety standard is “zero risk” – the implication being that it is impossibly strict and would lead to the unfair banning of chemicals when they pose virtually no risk at all.  But, as the industry well knows, the safety standard in the bill (“reasonable certainty of no harm”) is not new or novel in any way. In fact, the standard is the same as is currently used in existing laws covering pesticides, food additives, and animal drugs.  Moreover, it is the standard that Congress – both House and Senate -- adopted unanimously in the reform of our pesticide laws in 1996 to balance the use of toxic agrochemicals with reasonable protections for human health and the environment. The standard has never been interpreted to require “zero risk” from a chemical.

The chemical industry likes to posture as though it is committed to “sound science” -- a meaningless-PR term that was popularized in the mid-90s as part of the industry’s campaign against strengthened Clean Air Act standards for smog and soot.  But another of the industry’s main objections to the Safe Chemicals Act is its requirement that, in assessing chemicals, EPA should assess “aggregate uses” –meaning to consider all the sources of exposure to a chemical. For example, if a chemical ends up in food, drinking water, and indoor air, then a person’s aggregated exposure from all those sources should be considered when assessing the risk the chemical poses. The chemical industry’s opposition is hypocritical in a couple of respects.  First, this is the risk assessment approach recommended by the National Academy of Sciences in its landmark report: Science and Decisions: Advancing Risk Assessment.  (The NAS report is long and technical; NRDC did a summary of its key recommendations which might be a better place to start.)  Generally speaking, if you are really looking for “sound science” you are going to want to follow the National Academy of Sciences, not the PR-firms, lobbyists and scientists-for-hire working for Dow and Exxon – (although the industry works very hard to get its paid scientists and consultants onto those NAS panels). 

Second, it is a mantra of industry that chemicals should be regulated on “risk” and not just “hazard.”  The common definition of “risk” in the context of assessing chemicals is to consider both the hazard of a chemical (i.e. how toxic or bad it is), and exposure.  This is important to industry because their argument is that if you don’t consider the likelihood of exposure, you are more likely to “overregulate” chemicals that are hazardous but for which no one is really exposed to.  Yet, when it comes to figuring out how much exposure is actually occurring so that an accurate risk assessment can be done, the chemical industry is not interested.  The industry would prefer a system that assumes that exposure is not occurring, thereby rendering most chemicals “safe”.

The chemical industry pretends that an aggregate assessment would necessarily require tracking down every single possible source of exposure, making it impossibly difficult.  But, as the industry well-knows, that is not how aggregate assessments are done in practice.  Instead, where sources of exposure are unknown or difficult to determine, risk assessors can use scientifically-based default assumptions – some of which are also deemed “safety factors” -- that can stand-in for the data gaps.  Of course, the chemical industry doesn’t like the use of default assumptions, particularly those intended to provide margins of safety to account for unknown exposures or other risks.  In short, the chemical industry is pretending to desire a “scientifically-sound” and “workable” system of chemical assessment and regulation, when in fact it wants neither.

Finally, the industry’s professed commitment to “sound-science” is particularly galling given its extensive record of seeking to undermine independent chemical assessment programs (see here, here, here, here and here) and its support for legislation that would overturn long-standing restrictions on scientists with financial conflicts serving on scientific advisory boards.

It is important to keep in mind the long history of deception by the chemical industry when evaluating its current claims of commitment to reform and sound science.  Whether its decades-long defense of lead in paint and gasoline, its cover-up of data showing cancers caused by worker exposure to vinyl chloride, hiding blood testing results demonstrating unsafe levels of the Teflon-chemical PFOA in people living near a local production facility, its vain search for a pregnant “mom” to extol the virtues of Bisphenol A or its employment of a burn doctor to make-up testimony in defense of toxic flame retardants, -- and this is just scratching the surface -- the chemical industry, like the tobacco industry,  has no credibility and deserves no presumption of truthfulness.

So, here’s where things stand.  Senator Lautenberg, perhaps the Senate’s greatest champion for protecting the public from toxic chemicals, is climbing back in the ring for another round with the chemical industry, this time with Senator Gillibrand who has committed to lead the fight into the future.  Senator Vitter will, at some point, introduce his industry-written alternative bill in an attempt to block progress on the Safe Chemicals Act, and to dissuade Senators from working on compromise legislation based upon Senator Lautenberg’s bill. In Senator Lautenberg’s corner: the American Academy of Pediatrics, the American Nurses Association, the National Medical Association, the Learning Disabilities Association, the Bladder Cancer Action Network, the Breast Cancer Fund, The American Fertility Association and, according to recent polling more than ¾ of the American public.  In Senator Vitter’s corner: Dow,  DuPont, Exxon , Procter & Gamble, and other large chemical companies, along with dozens of other trade associations including the Grocery Manufacturers Association, the Toy Manufacturers, the Vinyl Institute, and the Chamber of Commerce.

It is truly a David v. Goliath fight, and we are grateful that Senator Lautenberg, Senator Gillibrand and the other co-sponsors of the Safe Chemicals Act are willing to stand up to the chemical industry and to fight for our health.