The Toxic Substance Control Act (TSCA) is a little known Federal law that has been on the books since 1976. However, due to recent amendments, this Act could have a huge impact on consumer safety. The purpose of the TSCA is to prevent the introduction of harmful substances into the United States by subjecting all new chemicals to a screening process. If a new chemical is determined to be unduly harmful to consumers, it can’t be manufactured or used in products in the United States. However, due to deficiencies in the Act, the Environmental Protection Agency (EPA), which oversees its implementation, has been unable to effectively enforce the Act’s provisions.
The TSCA was first signed into law in 1976. Since that time, the numerous attempts to strengthen and modernize the Act have had virtually no success. Problems with the Act prior to the recent changes include grandfathering in 62,000 pre-existing chemicals, a lack of funding, and ineffective tools to actually implement the screening process for new chemicals.
On June 22, 2016, President Obama signed into law numerous amendments to strengthen and modernize the TSCA. The EPA finally has power and the duty to effectively regulate the introduction of new chemicals into this country. Under the revised Act, the EPA must make a determination on the safety risk of those chemicals that were previously exempted from the law. Since the vast majority of substances used in everyday life were already in existence in 1976, this new authority will go a long way toward protecting consumers from dangerous substances. While the review of many thousands of pre-existing chemicals will take some time, the EPA is working on a risk-based approach to prioritize the review of chemicals most likely to pose a risk to consumers.
For new chemicals, the EPA now has the authority to delay the introduction of those chemicals and require the manufacturer to produce additional information. The previous version of the Act only allowed a 90-day ban before the chemical could legally be introduced, and the legal standard for enforcing a ban was one the EPA had a difficult time overcoming. If the EPA had not reached a determination prior to the expiration of the ban, the chemical could be introduced into the marketplace. Given the amount of testing necessary to determine if a new chemical is safe, this was not effective. Under the Act, new chemicals are now banned until the EPA reaches a determination. The EPA must reach a determination about the safety of new chemicals, and can require the manufacturer to perform additional testing and, importantly, to fund the EPA’s review.
The implementation of the revised Act could be the subject of litigation. The Act provides the EPA with both rulemaking and enforcement authority. Because a Federal Agency is tasked with writing the underlying standards and implementation procedures, this process could lead to challenges in court about the appropriateness of the EPA’s rulemaking and conclusions reached by the EPA.
The revised Act also may require manufacturers to provide what they contend would be confidential business information in its disclosures to the EPA. The new Act requires that its safety assessments for chemicals be a matter of public record, with the results to be published on the Web. While this is a good thing, big companies could file litigation over the breadth of information provided in the EPA’s published results.
Overall, I think the amendments to the Act is an improvement for consumers.
Sources: Law360.com and EPA.gov
Contact us today for a free legal consultation with an experienced attorney.
Fields marked *may be required for submission.
If you would like to subscribe to the Jere Beasley Report digital edition, simply visit our Subscriptions page and provide the necessary information or call us at 800-898-2034.
Attorney Advertising - Prior results do not guarantee a similar outcome.