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Logo Icon Draft of the Federal Toxic Substances Control Act is Currently Under Discussion in Congress

A reform draft of the federal Toxic Substances Control Act ("TSCA") is currently a topic of discussion in the United States House of Representatives Subcommittee on Energy and Commerce. The TSCA, which was enacted in 1976, regulates industrial chemicals and allows the Environmental Protection Agency ("EPA") to review and regulate chemicals in commerce. The TSCA has remained unchanged since its enactment, despite advancements in science and medicine.

The current changes are reflected in the Chemicals in Commerce Act ("CICA") and would allow federal regulations to preempt any existing state laws and create uniform regulations nationwide. Another change, as stated in the CICA, includes the application of a cost-benefit model by the EPA, rather than a risk-benefit approach, to determine whether certain chemicals should be restricted. Additionally, the new draft allows companies to keep the identity of chemicals from becoming public.

This reform draft in its current form has received mixed review. Those against the current version of the draft argue that, in regards to the CICA's ability to preempt state law, a "one-size fits all approach" will undo 40-years of state legislation that has been enacted to protect the citizens of each respective state. Additionally, the EPA, who noted improvements in the latest draft, is still challenging the current version of the reform draft, arguing that "burdensome legal and procedural requirements" will now be placed on the EPA's ability to test new chemicals and as a result protects thousands of chemicals from scrutiny.

Those in favor of the CICA proposal argue that federal preemption is necessary to create a uniform set of laws and that this uniformity will prevent regulatory inconsistency which has a tendency to undermine international trade discussions. Additionally, proponents argue that this version allows for a bill that will work when applied in the "real-world" given that the chemical industry has already been compliant with regulations set forth in the TSCA in the past 40 years.

While lawmakers continue to argue over the content of the reform draft, there is no argument that TSCA reform is necessary. The challenge lawmakers now face is crafting a bill that will actually pass in Congress.