US vs EU on Chemical Laws and Litigation

Today’s Washington Post includes a great article by Lyndsey Layton that contrasts European Union and U.S. chemical laws and explores how EU actions might affect products on U.S. shelves. Here’s Layton’s explanation of EU law and the philosophy that guides it:

From its crackdown on antitrust practices in the computer industry to its rigorous protection of consumer privacy, the European Union has adopted a regulatory philosophy that emphasizes the consumer. Its approach to managing chemical risks, which started with a trickle of individual bans and has swelled into a wave, is part of a European focus on caution when it comes to health and the environment.

“There’s a strong sense in Europe and the world at large that America is letting the market have a free ride,” said Sheila Jasanoff, professor of science and technology studies at Harvard University’s John F. Kennedy School of Government. “The Europeans believe . . . that being a good global citizen in an era of sustainability means you don’t just charge ahead and destroy the planet without concern for what you’re doing.”

Under the E.U. laws, manufacturers must study and report the risks posed by specific chemicals. Through the Internet, the data will be available for the first time to consumers, regulators and potential litigants around the world. Until now, much of that information either did not exist or was closely held by companies. …

The laws also call for the European Union to create a list of “substances of very high concern” — those suspected of causing cancer or other health problems. Any manufacturer wishing to produce or sell a chemical on that list must receive authorization.

Layton quotes the Lowell Center for Sustainable Production’s Joel Tickner – who wrote about the new EU regulations for us when they were issued – predicting that manufacturers will feel pressured to avoid the chemicals on this high-concern list. It’s good to know that the EU law might have some effect on the chemicals in U.S. consumer products, because our own Toxic Substances Control Act is ill-equipped to address the incredible volume and variety of chemicals currently in use. Layton explains:

In the United States, laws in place for three decades have made banning or restricting chemicals extremely difficult. The nation’s chemical policy, the Toxic Substances Control Act of 1976, grandfathered in about 62,000 chemicals then in commercial use. Chemicals developed after the law’s passage did not have to be tested for safety. Instead, companies were asked to report toxicity information to the government, which would decide if additional tests were needed.

In more than 30 years, the Environmental Protection Agency has required additional studies for about 200 chemicals, a fraction of the 80,000 chemicals that are part of the U.S. market. The government has had little or no information about the health hazards or risks of most of those chemicals.

The EPA has banned only five chemicals since 1976. The hurdles are so high for the agency that it has been unable to ban asbestos, which is widely acknowledged as a likely carcinogen and is barred in more than 30 countries. Instead, the EPA relies on industry to voluntarily cease production of suspect chemicals.

“If you ask people whether they think the drain cleaner they use in their homes has been tested for safety, they think, ‘Of course, the government would have never allowed a product on the market without knowing it’s safe,’ ” said Richard Denison, senior scientist at the Environmental Defense Fund. “When you tell them that’s not the case, they can’t believe it.”

Mark Schapiro has written an entire book (an engaging and quick read) called Exposed: The Toxic Chemistry of Everyday Products and What’s at Stake for American Power. In it, he explains that the difference between US and EU legal systems probably play some role in the gulf between their chemicals policies:

The United States has long had two legs to its structure of consumer protections: regulation on the one hand, and a receptive legal system on the other, giving citizens the right to pursue redress in the courts as a means of obtaining both compensation and punishment for damages to their or their community’s health and environment. The EU has few similar legal mechanisms; citizen standing on liability cases is limited, and damage awards are generally small. In Europe, government is generally presumed to be the first and last line of defense. Principles of European regulation are generally aimed at preventing abuses before they occur. In the United States, regulations may not be as rigorous, goes an argument I heard many times, but the willingness of the U.S. courts to impose financial sanctions against corporations that cause health or environmental damage provide a sort of after-the-fact penalty.

We can debate which of these two approaches is preferable, but we also need to worry about preserving our current “legislation plus litigation” consumer protection system. The Bush administration has been pushing an idea called preemption, which would protect manufacturers from litigation if their products meet federal standards. This might be okay if we could trust the Food and Drug Administration to assure that all the drugs on the market are safe and the National Highway Traffic Safety Administration to pass appropriate vehicle rollover standards – but the sad truth is that we can’t.

In addition to preserving the litigation option and strengthening federal agencies, we can also improve the legislation that directs agencies. The American Public Health Association is pushing for improvements to TSCA, so maybe we can deal with chemicals more effectively instead of relying on Europe to do it for us.