TSCA Reform Is Here

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which significantly amends the Toxic Substances Control Act (TSCA) and expands the authority and requirements of the U.S. Environmental Protection Agency with regard to the regulation of “chemical substances,” notably including heavy metals considered to be harmful to humans or the environment.  This new law has been described as the most significant environmental law to be enacted in several decades in the U.S., and brings the U.S. closer to the European Union and other countries with greater authority to limit or ban chemicals of concern.

In a nutshell, the new law directs the EPA to:

• Revise its outdated list of chemicals currently in commercial use (including in consumer products and other “conditions of use;”
• Establish a new risk-based chemical prioritization process (designating both “high” and “low” priority chemicals for review and risk evaluation;
• Ban or restrict chemicals determined to pose an “unreasonable risk” to humans or the environment, with particular emphasis on children and other more vulnerable groups and on chemicals that are persistent, bioaccumulative or highly toxic; and
• Review and make an affirmative finding of safety before any new chemical is allowed into the marketplace.

The new TSCA reform law also generally preserves preexisting state laws regulating the use or requiring the reporting or labeling of chemicals in consumer products, e.g., California’s well-known Proposition 65 labeling law.  And new state laws would only be preempted by EPA actions directly in conflict with EPA actions.  So the proliferation of state chemical product safety laws is not expected to end with enactment of the new TSCA reform law.

The first significant action to watch for will be the EPA issuance—expected within the next few months—of its first list of 10 “high priority” chemical substances.  Leading candidates for this new top 10 list are several heavy metals, including antimony, arsenic, cadmium, cobalt, chromium, lead, nickel and mercury.  While it may take up to 3 years for the EPA to either ban or, more likely, restrict the use of these and other substances, designation by the EPA of any high priority chemical is likely to immediately discourage their use in consumer products and other uses.

This post was authored by Quin Dodd, noted expert in the field of federal, state, and international product safety law.

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