Following California’s lead, other states move to impose tighter restrictions on the use, labeling and reporting of chemicals in consumer products. But federal reform may be on the horizon.
Recent changes in California provide an example of where chemical regulation in the United States could be headed in the coming years.
On Jan. 1, Technical Bulletin 117-2013—California’s revised flammability standard—took effect. The new standard aims to discourage manufacturers from using flame-retardant chemicals in upholstered furniture by eliminating the state’s previously required open-flame test. To meet the former TB 117 open-flame test, most upholstered furniture was made with polyurethane foam that contained one of several fire-retardant chemicals. The new, less demanding standard relies on three tests to evaluate the cigarette-ignition resistance of upholstery cover fabrics, barrier materials and filling materials, making the use of FR chemicals in the foam no longer necessary.
In a further step, a new law also went into effect on Jan. 1—Senate Bill 1019, also known as the Leno Bill—that requires furniture manufacturers to disclose whether an upholstery product contains any added fire-retardant chemicals. The new regulation doesn’t prohibit the use of FR chemicals in the furniture but, if such chemicals are used, they now must be disclosed through a flame-retardant content statement. The statement must appear at the bottom of the TB 117-2013 compliance label, which must be attached to every article of new upholstered furniture sold in the state.
The new FR statement also must inform the consumer that: “The State of California has updated the flammability standard and determined that the fire safety requirements for this product can be met without adding flame retardant chemicals. The State has identified many flame retardant chemicals as being known to, or strongly suspected of, adversely impacting human health or development.”
According to the American Home Furnishings Alliance, the crusade against the use of FR chemicals in upholstered furniture was bolstered in 2013 by an HBO documentary called “Toxic Hot Seat.” The film gave many consumers reason to believe their sofas may make them ill.
“Although little is currently known about possible health impacts of being exposed to FR chemicals in the amounts that might be present in household dust, the Green Science Policy Institute and other research organizations continue to investigate,” says a statement on the AHFA website. “Individual states, however, have been unwilling to wait on either the scientific results or efforts on the federal level to regulate the use of these chemicals. More than two dozen states have introduced or announced plans to introduce legislation aimed at the use of chemicals in consumer products, and many of these measures specifically target FR chemicals in furniture and children’s products.”
Implications for mattresses
In implementing SB 1019, the California Bureau of Electronic & Appliance Repair, Home Furnishings & Thermal Insulation explicitly stated in an FAQ document issued in November 2014 that mattresses are not subject to the new FR labeling requirement because they are not considered to be upholstered furniture subject to the requirements of TB 117-2013. As a result, the mattress industry was not affected by the recent furniture developments in California.
Since 2007, mattress manufacturers have had to pass a stricter national flammability standard (16 CFR Part 1633) than is the case for upholstered furniture. Unlike the upholstery industry, which used FR foam to meet old TB 117 requirements, bedding companies meet the more demanding Part 1633 standard using barrier fabrics wrapped around the filling materials. These barriers generally are quilted to, or placed directly under, the mattress ticking, where they have proven highly effective at preventing or delaying the ignition of the polyurethane or latex foam used inside the mattress—and which contains most of the product’s fuel load. As a result, even if a 1633-compliant mattress does ignite, the slower ignition process provides valuable time for consumers to identify the fire, escape the home and summon help.
“The barrier products in use by the bedding industry are all quite safe,” says Ken Oliver, president of Jones Fiber Products in Humboldt, Tennessee. “The industry had to go through a lot of due diligence about the materials we used back in the early 1970s when CFR 1632 was passed, and again in the mid-2000s, when CFR 1633 went into effect. There were a lot of questions about product safety at both points in time and, through research and analysis, those questions were all answered.”
The bedding industry builds its products with “effective, non-controversial materials that have been in the marketplace for many years,” says Ryan Trainer, president of the International Sleep Products Association. “In setting the 1633 standard, the Consumer Product Safety Commission considered the safety of the FR barrier solutions used in bedding.”
But because the list of chemicals of concern in states like California continues to grow, “the industry needs to keep a close eye on any changes that take place on the regulatory scene,” he adds.
The moving target of Prop 65
While the bedding industry is exempt from the new labeling rules in California’s SB 1019, manufacturers and retailers of all products are subject to the “right-to-know” disclosure requirements of the state’s Proposition 65 initiative. Passed in 1986 by a direct voter initiative, Prop 65 requires producers and retailers of products sold in California to notify workers, communities and consumers if chemicals that the state has concluded have the potential to cause harm are present in their products, workplace environments or retail stores.
More than 800 chemicals are currently listed under Prop 65, and the list continues to expand. California adds a chemical to the list if it has the potential to cause cancer, birth defects or reproductive harm. Compliance with this disclosure requirement can be challenging because when it decides to add a chemical to the list, the California Office for Environmental Health Hazard Assessment does not always consider the amount of daily exposure necessary to cause harm. In fact, for newly added chemicals, a safe dosage or exposure—known as Safe Harbor—may not be determined until much later, if at all.
As a result, if a Safe Harbor level has not been determined, many manufacturers and retailers err on the conservative side to avoid any possibility of a technical violation of Prop 65. These companies opt to provide a warning if a product contains any amount of a listed Prop 65 chemical, even if it is only contamination or trace amounts, regardless of whether that small amount of the listed chemical truly poses a risk to health or not.
The law requires that consumers buying products containing Prop 65 chemicals be warned prior to exposure. This warning can take the form of a label on packaging or signage at the point of purchase. For example, if a Prop 65 warning is necessary, wood furniture producers typically put the label on their product or box if it is the type of product, such as a ready-to-assemble item, that the consumer takes home in a package. Some upholstered furniture manufacturers whose products contain Prop 65 chemicals have added the disclosure language to the bottom of their products’ TB 117 flammability label—making the label a sort of “billboard” for California warnings, according to Bill Perdue, vice president of regulatory affairs for the AHFA in High Point, North Carolina.
One fire-retardant chemical once used by many foam suppliers for upholstered furniture application—TDCPP—was added to the Prop 65 list in 2011. Even if a bedding manufacturer did not specify the use of TDCPP in the foams that it purchased, TDCPP occasionally found its way into mattresses due to residual amounts left in machinery during production switchovers from upholstery foam to bedding foam. Foam producers eliminated the use of this chemical from foams used in home furnishings once it was added to the Prop 65 list.
Furniture industry players also worked closely together in 2003-04, when PBDE flame-retardant additives were phased out of foam production. For more than a quarter century before that time, PBDE additives were the predominant fire retardant used to help meet the requirements of California’s TB 117 flammability standard for upholstered furniture.
Currently, foam-containing sleep products can be produced with dose or exposure levels that do not require Prop 65 labeling, according to Scott Pugh, research director of Carpenter Co. in Richmond, Virginia. Foam suppliers must make a Prop 65 assessment based on their knowledge of the raw materials used in and the intended purpose of the product. If changes take place on the Prop 65 list, those suppliers would re-evaluate their notification requirements and inform their California customers of the presence of listed chemicals if so indicated. Bed manufacturers that sell in the state, in turn, would then decide whether to label their products.
Failure to provide Prop 65 notices when required in California can expose affected manufacturers and retailers to substantial financial liabilities. Prop 65 allows private parties to sue alleged violators, and most cases settle before trial, with settlements in 2013 averaging about $50,000, according to aog.ca.gov, the website of the state attorney general’s office. In 2012, 352 claims were settled totaling $17.4 million. Frequent filers of lawsuits include the Environmental Research Center, Consumer Advocacy Group and the Center for Environmental Health, but individual citizens also can initiate litigation.
Under the terms of Prop 65, the burden of proof is on the defendant rather than the plaintiff—an approach that means it often is less expensive for a company to settle than it is to prove its innocence, critics charge.
“Prop 65 is an 800-headed monster,” says Bobby Bush, senior vice president of foam technology at HSM in Hickory, North Carolina, which provides a range of polyurethane foam products to the furniture and sleep product industries. “We’ve had a few customers request that we provide testing, and there’s no way you can test for 800 chemicals. We couldn’t afford it, and they couldn’t afford to buy the product if we had to support that level of testing.”
The approach most suppliers have to take, when it comes to Prop 65, Bush adds, “is to say to the best of our knowledge, our product doesn’t contain these chemicals of concern. There’s no way to absolutely guarantee that something isn’t present—if you look hard for anything, you’re going to find it, because with today’s testing capabilities, virtually nothing comes out to a level of ‘zero’ anymore.”
Whether to test or not to test and label materials for toxic chemical levels is a decision each bedding supplier and manufacturer should assess based on its own product lines, business strategies and risk tolerance, says Bob Luedeka, executive director of the Polyurethane Foam Association. “There’s a lot of stuff on the Prop 65 list with no Safe Harbor. Any detectable amount could result in litigation. Manufacturers have to think this through very carefully: Is it better to err on the side of caution and issue a warning or risk detection at an extremely low level?”
The fact that foam is an absorptive medium also can be a challenge, Luedeka adds. “It’s possible for foam to acquire contaminants during transportation by simply being in contact with other products that may contain listed chemicals, such as plywood with formaldehyde.”
At one point, California officials proposed that ethylene glycol—a chemical that some suppliers use in the extrusion of polyester foam—be added to the Prop 65 list. But, at this point, no action has been taken and the chemical remains in widespread use without a Prop 65 warning requirement.
“So far, cooler heads have prevailed, but we’re watching this closely because the addition of this chemical to the Prop 65 list could have a big effect on the entire home furnishings industry,” Luedeka says. In addition to foam, the chemical also may be contained in raw materials used in fiber production and in production of PET plastic bottles.
Priorities for action
In addition to Prop 65, California has a law in place called the Green Chemistry Initiative designed to regulate chemical use in the state. Adopted in 2008, GCI established an advisory panel of scientists to guide research in chemical policy, create regulations for assessing alternatives and set up an Internet database on toxins.
In 2013, California adopted new Safer Consumer Product regulations to implement the GCI. The SCP regulations provide the Department of Toxic Substances Control with new authority to control the use of toxic substances in consumer products.
For certain chemicals of concern, the SCP regulations require a new life-cycle “alternatives analysis” to evaluate alternatives and substitutes for hazardous substances in consumer products based not only on their risk during product use, but also during their manufacture and after disposal. The state may then condition, restrict or ban the use of those chemicals.
In September 2014, DTSC issued a “Draft Priority Product Work Plan” identifying six categories of products from which “Priority Products” will be selected for detailed review over the next years. One of the categories is “household, office furniture and furnishings,” including bedding, that contains chlorinated and brominated organic compound and organophosphate flame retardants. DTSC also has named three initial product types to be assessed under the SCP regulations. “Children’s foam padded sleeping products containing Tris phosphate or TDCPP” is one of three targeted product types.
Children’s sleep products became a focus after independent testing commissioned by the Center for Environmental Health found that some children’s mattress sets, changing pads and rest mats imported from China in 2012 contained TDCPP. Even though U.S. manufacturers were no longer using this chemical by that time, there was still some residual use in foreign markets. CEH’s tests identified 15 baby and children’s products being sold in California with high levels of chlorinated Tris but without the required Prop 65 warning labels. The appearance of those products in the U.S. strengthened calls for more scrutiny of the whole category of children’s sleep products.
Children’s products have drawn the special attention of regulators because of the higher risks that toxin exposure poses to newborns and young people. But, as is the case with adult beds, manufacturers will use FR barriers—not FR-treated foams—when necessary to make children’s mattresses meet federal flammability standards. Indeed, in some cases, bedding producers will simply use an untreated cotton barrier, since “cotton smolders and chars but doesn’t burn,” says Jones’ Oliver. “Since the product is so much smaller than an adult bed, and therefore contains a much smaller fuel load, the heat generated from the ignited test mattress never rises to the point of failure on 1633 FR tests.”
Because the size of the children’s bedding market segment is relatively small, a number of bed manufacturers buy their foam from local distributors and fabricators rather than directly from a major foamer. These distributors and fabricators often handle many types of foam bought from a variety of domestic and import producers. Such resellers may not always be aware of their foam’s components, creating a slight chance that an FR-treated foam designed for automotive use—where some FR foam is still required—might find its way into a residential bedding application even though it wasn’t specified for that use.
“If a manufacturer buys from a small local fabricator or distributor, it needs to be especially diligent to make sure it gets the right product,” Luedeka says.
Once the DTSC finishes its review of the various priority products, it will issue regulations on the use of specific chemicals. At that time, manufacturers, importers, distributors and retailers of these priority products could be required to take action, depending on any new guidelines that are set. As a result, all entities in the chain of commerce producing and selling such products need to keep abreast of future developments and understand the steps required to be in compliance when that time comes, the DTSC advises.
State activity heating up
Following California’s lead, other states also are moving to impose tighter restrictions on the use, labeling and reporting of chemicals in consumer products.
“There’s a lot going on right now with regard to chemical regulation,” says ISPA’s Trainer. “Governments at the international, federal and state levels are imposing new rules regarding what chemicals industry can use, what needs to be disclosed and whether alternatives should be used.”
In June 2014, for example, Vermont Gov. Peter Shumlin signed into law a bill requiring manufacturers of products with toxic chemicals that can cause harmful health effects to disclose when those chemicals are present in children’s products. The new law identifies 66 chemicals of high concern to children and provides the authority for chemicals to be added or removed through rulemaking. Manufacturers that intentionally add these chemicals to their children’s products, including cribs and kids’ mattresses and bedding, will have to notify the Vermont Department of Health.
Manufacturers must begin to submit disclosures biennially to the Health Department starting July 1, 2016.
The new law is designed to give scientists data about the number of products that contain chemicals of concern and the amount of chemicals in products. The state will provide that information on a website that consumers can use to assist in making purchasing decisions. Eventually, some of the chemicals of concern could be banned for sale in Vermont for use in children’s products or require a label before they can be sold.
To date, Vermont has restricted the use of bisphenol A (BPA), some phthalates, some PBDEs and some chlorinated phosphate (Tris) flame retardants in children’s products and a limited number of other products. The current list should have little or no impact on mattress producers. For example, the use of most types of phthalates in children’s products is already prohibited by federal law, PBDEs were phased out of use in the United States as an FR additive in polyurethane foams years ago, mattresses do not need to use Tris-treated foam to meet 1633 requirements and BPA is not used in mattresses. But that could change depending on what new chemicals Vermont adds to its list.
Similar laws restricting the use of chemicals in children’s products have been enacted in Washington state and Maine. And legislators in other states, such as Connecticut, Oregon and Massachusetts, are considering measures.
State legislative interest in this topic appears to be growing. A total of 577 bills involving toxins and chemicals were introduced in 2014, or reintroduced from previous sessions, covering 43 states, according to an environmental health legislation database maintained by the National Conference of State Legislatures. In 2013, 399 such bills were filed.
In a news release announcing Vermont’s new law, Shumlin shared his view that chemical regulation should be a national enterprise, not a state-by-state endeavor, but added that the failure of Congress to update the federal Toxic Substances Control Act prompts many states to act on their own. TSCA (pronounced Tah-skah) has not been as effective at limiting exposure to toxic chemicals in consumer products as state officials desire, he said, so they moved to impose their own requirements for the state.
“Until TSCA is updated, more and more states are going to follow the lead of California,” says ISPA’s Trainer. “And it’s likely the scope of regulation in states that have already acted, like Vermont and Washington, will expand to include a wider range of products. Right now, this issue only affects children’s products, a relatively small segment of our industry. But we know from the actions of the past 15 years that home furnishings is a targeted group for these sorts of regulations.”
If more states move to set their own standards, that will cause significant new challenges for suppliers and manufacturers, Carpenter’s Pugh adds. “Piecemeal regulations are very hard to keep up with since the rules vary from state to state. Just tracking all the proposals and regulations and making the necessary notifications and labels for customers will be a costly and time-consuming process.”
And a hodgepodge of different state rules will create many logistical challenges, since virtually everything would have to be labeled to protect against a product intended for one region or market ending up being used in another location or industry, he adds.
When states act on their own, there’s also a risk that a useful product may be eliminated from the marketplace without cause. “Most states don’t have the resources to do a true scientific assessment of the materials,” Pugh says. “Their decisions can sometimes be purely reactionary, based on the court of public opinion rather than a scientific risk assessment.”
The call for TSCA reform
Passed in 1976, TSCA is a federal law that provides the U.S. Environmental Protection Agency authority to review and regulate chemicals in commerce. TSCA was designed to protect the public and the environment from toxic substances. Rarely amended since its adoption, the law is in need of a major update to reflect the many changes that have taken place in science and society since that time, says Robert Flagg, senior director of federal affairs for the American Chemistry Council in Washington.
“Creating an effective process for assessing chemicals is crucial for generating valuable exposure information and developing regulations that protect human health and the environment while preserving America’s ability to innovate,” Flagg says. “Unfortunately, because few substantive changes have been made to TSCA over the years, there’s been a loss of faith on the part of the public that the government—no matter which party is in control—is using the tools available to make sure the chemicals we use are safe.”
To educate Congress and the public about the need for reform, ACC formed the American Alliance for Innovation, a coalition of more than 180 trade associations representing a broad spectrum of the economy, including ISPA. In an April 2014 letter to senior leaders of the House Committee on Energy and Commerce, the group urged officials to take action to strengthen TSCA.
“Creating an effective national regulatory system that will allow us to continue to provide the goods and services that so many Americans rely on as part of their everyday lives is critical as part of this update,” the letter says. “In addition, any update needs to allow U.S. industries to continue to bring innovative solutions to the marketplace and provide consumers with a greater degree of confidence that chemicals in commerce are being used safely.”
Even though bills to reform the measure have been under consideration by Congress since 2011, when the late Sen. Frank Lautenberg (D-N.J.) introduced the Safe Chemicals Act, which attracted bipartisan support, little progress has been made (See story on pages 38-39), causing a number of environmental advocacy groups and attorneys general to push for more immediate action at the state level. As a result, the regulatory landscape has become fractured and contradictory in some cases, says Chris Hudgins, vice president of government relations and policy at ISPA. This state-level patchwork of chemical bans has the potential to become a regulatory nightmare—an outcome the mattress industry and many other businesses hope can still be avoided by meaningful reform to TSCA.
With more changes to California’s Prop 65 warning regulations on the horizon, as well as the identification of potential products that will be subject to California’s new SCP regulations, sleep product producers need to keep a steady eye on their shifting obligations and liabilities in the state.
“If they aren’t doing this already, manufacturers need to talk with their suppliers about what’s in their components,” says ISPA’s Trainer. “They need to know what chemicals are being used, if they are on the Prop 65 list or are of concern to other states, and in what volumes. Manufacturers need a clear understanding of any areas where they might be exposed to regulation and possibly litigation. And if they are adding a new product that they don’t have any history with, they need to pay close attention to what’s in that.”
The concern is not the chemicals that are used to make the product, but the residual, unreacted chemicals that remain, adds HSM’s Bush. “TDI has been on the Prop 65 list for around 30 years. A key ingredient in flexible polyurethane foam, TDI is completely reacted in the foaming process and cannot be found in cured, finished foam. As a result, TDI carries a Prop 65 label. Foam does not.”
This due diligence is particularly important when it comes to imported fabrics, foams and other components.
“It’s the U.S. importers’ responsibility to keep records and, if there is a lawsuit, they are the face for the foreign company,” Bush says. “That can be a big problem if you’re not prepared. One of our furniture customers recently called and asked how he would go about having a piece of Chinese-made foam tested for fire retardants. The smart answer: Don’t buy from them or, if you do, make sure you ask lots of questions at every stage of the transaction.
“Anybody using imported product, particularly shipping into California, better be sure they know exactly what’s in it.”
To stay on top of potential issues, Bush recommends that mattress manufacturers develop a set of chemical best practices, assigning an individual or team to work with product engineers and component sources to assess the chemical content of current and planned products. He said that California’s Office of Environmental Health Hazard Assessment provides a number of useful resources, including a newsletter and Listserv for staying on top of Prop 65 requirements, additions and changes.
“We regularly go through their list and look for any new chemicals that have been added that might be relevant,” Bush says. “But the way things are going, it may reach the point where one day it will be easier to make a list of chemicals that aren’t on Prop 65 than the ones that are.”
Bush also suggests companies consult with legal counsel familiar with the requirements of Prop 65 and other federal and state safety laws for advice on what, if any, action to take with regard to the sourcing of materials and labeling of products. “Communication both in and outside the organization, along with the ongoing monitoring and compliance with safety standards, are critical to one’s success in avoiding problems,” Bush advises.
While it looks like current regulations won’t have much of an impact on the sleep products industry in the short or medium term, “long term, we all need to have a basic understanding of the issues and be alert to new developments,” adds Trainer of ISPA.
“Down the road, we may be required to provide additional information on our product labels. We may reach the point where we’re not only showing that we’re using new foam or fiber in our products, as we currently do, but we’re also providing details about what’s in the foam or fiber,” Trainer says. “That’s one area where our industry may face more of a regulatory burden in the future.”
CertiPUR-US label provides third-party assurance
For a growing number of foam manufacturers and mattress makers, the industry’s voluntary CertiPUR-US® program offers an effective way to allay consumer concerns about the chemical composition of their products.
Administered by the Alliance for Flexible Polyurethane Foam—a not-for-profit or-ganization—the CertiPUR-US label provides assurance that the foam in bedding or upholstered furniture has been tested and certified by an independent laboratory to meet specific criteria for indoor emissions, content and physical performance.
To earn the seal, CertiPUR-US-certified foams are tested by a third-party laboratory to confirm they have been made without chlorofluorocarbons or other ozone depleters; PBDE flame retardants; mercury, lead and heavy metals; formaldehyde; and prohibited phthalates. Certified foams also must demonstrate low levels of volatile organic compound emissions that affect indoor air quality, and they must pass physical performance tests for durability.
More than two dozen foam producers and 100 mattress manufacturers from around the world have certified foam products through the program since its launch in 2008. Companies with certified products include major foamers such as Carpenter Co., Future Foam Inc., FXI, HSM Solutions, Innocor and Vitafoam. Manufacturers such as Englander, Glideaway, Kingsdown, Restonic, Serta, Simmons Bedding Co., Symbol and Therapedic International also have qualified all of their foam sources as CertiPUR-US compliant. A number of import foam and mattress sources also partici-pate in the program.
“Participation in the CertiPUR-US program continues to grow every year,” says Michael Crowell, executive director of CertiPUR-US in Rochester Hills, Michigan. “Our biggest challenge now is getting mattress manufacturers to understand that they can’t use our name or logo, or get listed on our website, until they register with us. It’s free, but there is some paperwork that must be submitted so CertiPUR-US can verify they are purchasing certified foam. This program is all about transparency, integrity and credibility, and we are vigilant about protecting the brand.”
For more information, visit www.certipur.us.
Prospects for federal reform looking up
The odds of Congress reforming the Toxic Substances Control Act—the federal law passed in 1976 that gives the Environmental Protection Agency broad authority to regulate the manufacture, use and distribution of new and existing chemicals—may improve now that the Senate is in Republican hands.
With Sen. Barbara Boxer (D-Calif.) out as chair of the Environment and Public Works Committee, one of the main impediments to TSCA reform has been removed. Last Congress, Boxer blocked an historic bipartisan chemical safety reform package introduced by Sens. Frank Lautenberg (D-N.J.) and David Vitter (R-La.) from seeing committee action. (When Lautenberg passed away in 2013, Sen. Tom Udall of New Mexico became the lead Democrat for the bill.) The bill had strong bipartisan support, with more than 25 percent of the Senate signed on as cosponsors, but Boxer viewed the measure as threatening the stronger state regulations California recently has put in place.
“Sen. Boxer and other state lawmakers opposed the bill’s preemption language, which would make the EPA the deciding authority on these issues rather than each individual state,” says Chris Hudgins, vice president of government relations and policy for the International Sleep Products Association. “They are concerned that EPA won’t have as much power as the states, and they don’t want to undo what the states have already done in this area.”
But having each state set its own restrictions for chemical use, disclosure and labeling would be “death by a thousand cuts,” says Robert Flagg, senior director of federal affairs for the American Chemistry Council in Washington. “It would make business terribly difficult, since companies would have to track and comply with a blizzard of ever-changing regulations that vary from state to state.”
The ACC and ISPA, along with a diverse coalition of manufacturers and retailers, supported the Vitter-Udall measure, known as the Chemical Safety Improvement Act. The group—working together as the American Alliance for Innovation—contends that chemicals management law must be updated to keep pace with scientific advancements and to provide Americans with the confidence that the federal regulatory system is working to protect their families and the environment.
“The sound oversight of the production and use of chemicals affects us all, which is why we are committed to science-based, common-sense bipartisan reform of our nation’s chemical regulatory system,” says Amy DuVall, senior director of federal affairs for the ACC, which helped organize the alliance.
With the change in the balance of congressional power, Sen. Jim Inhofe (R-Okla.) now leads the Senate’s EPW committee, which means the Vitter-Udall bill, when reintroduced in 2015, will have a better chance of heading to the floor for a vote than in years past.
“The choke points that kept the previous bill from moving forward have been removed,” Flagg says. “It doesn’t mean that a bill will be a slam dunk, but the odds of passage are greatly improved.”
To ensure that a new bill has a chance of being signed by President Obama, it needs to have bipartisan support in both the House and Senate, Flagg adds. “The administration has never taken a position on any of the TSCA reform bills, so it’s possible that passage would require a veto-proof majority.”
Flagg adds that Vitter and Udall in the Senate and Reps. Fred Upton (R-Mich.) and John Shimkus (R-Ill.) in the House all have indicated that TSCA reform remains high on their priority lists. “We’re optimistic that this Congress may be able to act this time.”
European regulatory model poses problems
For some U.S. environmental groups and policymakers, Europe’s REACH system provides a model for how chemical regulation might be approached in the United States.
REACH stands for Registration, Evaluation, Authorization and Restriction of Chemicals. Put into force by the European Community in 2007, it is founded on the “precautionary principle,” which requires that chemicals undergo a rigorous program of testing and assessment to demonstrate before they can be marketed or released into the environment that they pose no danger to people or wildlife.
“REACH is substantially different from the regulatory approach historically employed in the United States,” says Ryan Trainer, president of the International Sleep Products Association. “Under the REACH model, there’s no presumption that existing chemical substances that have been commonly used and marketed safely for many decades are safe. Instead, the manufacturers and importers of particular chemical substances to the EU must overcome a presumption that these substances are not safe.”
The European approach can be time-consuming and costly, adds Trainer. “Critics argue that REACH imposes costs that discourage innovation. In the U.S., we take a more common-sense approach based on practical experience: If a chemical has been in use for a long time without problems, we generally assume it’s safe unless shown otherwise. We don’t force companies to prove a negative—that no harm could be caused by a chemical’s use.”
At one point in time, the Toxic Substances Control Act—the current federal law regulating U.S. use of chemicals—was seen as the “gold standard” for global chemical regulation, says Robert Flagg, senior director of federal affairs for the American Chemistry Council in Washington. “But in recent years, everyone has started poking holes in TSCA. Some proponents of change argue that a more precautionary approach is needed, and they point to REACH as a possible model. But REACH is an unproven system with a number of potentially serious flaws.”