There has been a lot of discussion lately about the chemicals that get added to our food and sprayed on or around it while it’s growing. But science shows that even if we removed the pesticides and additives, we’re all eating and drinking a number of other chemicals with unintended consequences every day.
Flame retardants known as PBDEs are turning up regularly in meat and poultry and other animal products, mercury is in now most wild seafood, and phthalates are turning up in fast food—just to name a few.
But a bill approved last week by the Senate could help change all that. Eventually. The new bill revises the Toxic Substances Control Act, (TSCA) our nation’s main chemical safety law. This is the first update of the law since it was first enacted in 1976. And, as you might guess, a lot has changed since then.
This legislation comes after years of debate. But the final bill, approved overwhelmingly by Congress, is being welcomed by the chemical industry. And while many environmental advocates say the bill falls short of what is needed to truly protect Americans from dangerous chemicals, groups on all sides appear to agree that it’s an important improvement.
When it comes to concerns about toxics in food, Patty Lovera, assistant director at Food & Water Watch says, the big question is whether the bill is “new and improved enough to prevent dangerous chemicals from … getting into the environment and into food and water?”
What TSCA Does (And Doesn’t Do)
The universe of chemicals that TSCA regulates is enormous; it now includes more than 80,000 chemicals. And while TSCA gives the U.S. Environmental Protection Agency (EPA) the authority to regulate chemicals used commercially in the U.S., it does not regulate pesticides, cosmetics, or drugs. TSCA also regulates many chemicals that end up being used as food additives and in food packaging and containers but it does not regulate how those chemicals can be used with food. Those explicit uses (of chemicals like Bisphenol A (BPA) in food can linings and PFCs in pizza boxes, for example) are regulated by the U.S. Food and Drug Administration (FDA) under other laws.
But many chemicals, such as BPA, have multiple uses that can result in exposure through food even when they’re not put into food or used in food packaging. And many chemicals not intended to be used anywhere near food—such as perchlorate, for example—often end up in food and drinking water after they’re released into the environment.
What Will the New TSCA Bill Do?
The big shift is that this bill gives the EPA new authority to request safety testing information from chemical manufacturers before chemicals go onto the market. It will also require the EPA to test all chemicals, beginning with those considered a “high priority” because of their potential hazards. Under the old law, the vast majority of chemicals were allowed to be used without full information about their environmental and health impacts.
For example, if the TSCA had required the EPA to determine whether PBDEs were persistent chemicals that can build up in fat tissue before they went onto the market, they might not be turning up in food worldwide. The same could be said of the waterproofing, nonstick and stain-resistant coating chemicals known as PFCs, which are likely absorbed by pizza and donuts purchased in boxes treated with the chemical.
Now, TSCA will require the EPA to make regulation of chemicals that can persist in the environment and build up in human bodies a priority. The new law also will require EPA to make the safety evaluation of chemicals stored near drinking water sources a priority.
This step will be important for preventing industrial chemicals from contaminating drinking water sources as has happened with perchlorate, trichloroethylene, and many other chemicals in communities from California to New York–both through regular industrial use and in catastrophic accidents like the chemical spill that shut down Charleston, West Virginia’s water system in 2014.
As Environmental Defense Fund (EDF) senior scientist Richard Denison explained, the new TSCA bill will require “EPA to look at what are now called ‘conditions of use,’ the range of uses of a chemical, and everything associated with the lifecycle of the chemical.” This includes what happens if the chemical gets into the environment during manufacturing, is released from a finished product while it’s being used, and what happens during disposal. An essential part of such a review is considering human “exposure through food and water,” he explains.
The new law also requires the EPA to consider the impacts of chemicals on what are considered the most vulnerable populations, including children and pregnant women. It will also limit chemical manufacturers’ ability to claim chemical information as trade secrets and thus bar access to details essential to protecting people from toxics.
For example, chemicals identified as endocrine disruptors—such as BPA and phthalates, among others—have been shown to have prenatal effects. Pregnant women and children are regularly exposed to these chemicals through food. Under the new TSCA, EPA will have to explicitly consider such exposures. The agency did not have to do so before.
Questions (Like Chemicals ) Persist
Just how effectively EPA will be able to do all this under the new law depends heavily on how well it will be funded, says Representative Chellie Pingree (D-Maine).
Environmental Working Group (EWG) legislative attorney Melanie Benesh is also concerned about how quickly the EPA will be able to address the tens of thousands of chemicals TSCA regulates for which the agency lacks full safety information. “The pace is very slow. So it will probably be a decade before we see new regulation under this bill,” she says. Yet the agency does have deadlines, which EDF’s Denison says will keep the EPA on task.
EWG is also concerned about the new bill’s safety standard. Like the law that has been in effect for the past 40 years, the new TSCA bill continues to make the cost of regulation a consideration in determining whether a chemical will be restricted. Historically, that has kept hazardous chemicals—asbestos, for example—from being fully banned. How the new bill interprets this standard “remains to be seen,” says Benesh.
Another big question is how the new law will affect state regulation of chemicals. In the absence of effective action by EPA, states have been acting to restrict use of hazardous chemicals, often spurred into action by consumers and advocacy groups concerned about health effects.
For instance, it was largely consumer pressure that moved states to act on BPA, by pushing many products off store shelves. It was also state action (in California) that has changed furniture standards to no longer require the use of flame retardants. And states like Maine, Oregon, Vermont, and Washington, which require manufacturers to report on chemical use, have also been key in pushing manufacturers and retailers to use fewer, and less-hazardous chemicals.
The new law imposes some limits on how and when a state can regulate a chemical, limits that are tied to the EPA’s action on that chemical. For this reason, Representative Pingree was one of the 12 House members who voted against the bill.
“Because I come from a state that has been quite forward-thinking about [chemicals], I wanted to register my concern that we were limiting our opportunities, and that in the future states could be prevented from acting because they have to wait for the federal agency decision,” says Pingree.
“When problems happen, states are at the forefront,” says Safer States national director Sarah Doll. “Because states have been asking the questions about exposure, I expect them to be continue to be on the frontline of protecting their citizens,” she says. In addition, says Doll, “States have played a critical role in creating market transparency, demanding that companies tell us what is in our products.” That role—and that of consumers who’ve been pushing companies to remove toxics from products—remains as important as ever, she says.
The bottom line? The new bill gives EPA many useful new tools with the potential to keep toxics out of the environment, food, and water. But that change will not happen overnight.
The updated TSCA now goes to President Obama who has already endorsed it and is expected to sign it into law.