On May 24, 2016, the U.S. House of Representatives passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (the "Act"), which is now before—and expected to be passed by—the U.S. Senate. The Act is aimed at reforming the Toxic Substances Control Act ("TSCA"), a 1976 law that governs the regulation of chemicals used in goods in the United States. The TSCA has long been criticized as ineffective and incapable of assessing the safety of all the chemicals in modern consumer goods. As such, the Act was passed in the House by a vast margin because of bipartisan support, as well as support from both environmental safety groups and the chemical industry. Although the Act is widely regarded as a much needed update, it has still been met with criticism.
The Act garnered support from all sides because of desire to reform the TSCA and create an organized national system for the regulation of chemicals, as opposed to the present piecemeal system largely governed by individual states. Although the Act will allow existing state chemical regulations to stand, it will preempt state regulations, other than California's Proposition 65, not in place prior to April 22, 2016. The Act will not preempt any existing or future regulations under Proposition 65. Further, the Act will prevent states from regulating a chemical while the Environmental Protection Agency ("EPA") is assessing whether it should be controlled at the Federal level.
The Act gives the EPA authority to evaluate the safety of new chemicals before they enter the marketplace and impose restrictions on the chemicals use in a wide variety of products. Further, the Act requires the EPA to identify and evaluate—without regard to cost or other non-risk factors—and regulate high priority chemicals it determines pose an unreasonable risk under normal use. However, the Act only requires the EPA to review and evaluate 10 chemicals at a time and eventually to review and evaluate 20 chemicals at a time, a pace some criticize as too slow to keep up with a backlog of chemicals that is growing at a rate of almost 700 new chemicals per year.
Notably for manufacturers, the Act places limitations on a company's ability to claim that chemical ingredients contained in their products constitute confidential business information. The Act sets a ten-year limit for new claims of confidentially, unless renewed and substantiated, and requires the EPA to scrutinize all confidentiality claims. Accordingly, the public, including prospective plaintiffs, will have more access to information regarding the chemical ingredients and formulation of consumer products.
Although the Act has been viewed by many as a necessary update to an outmoded regulatory scheme, it is not without its critics. Indeed, while many assumed the Act would easily pass in the Senate it was initially blocked by Republican Senator Rand Paul who expressed concerns over the ability of the EPA to preempt the States' authority to regulate chemicals in consumer goods. Senator Paul was able to block approval of the Act because it was submitted under unanimous consent procedure. Under this procedure the Act could only have passed as long as no senators objected.
Regardless, the Act will again be submitted to the Senate on the week of June 6, 2016, at which time it is expected to pass and be submitted to the President for signature. Going forward, the chemical industry can expect the EPA to thoroughly and methodically evaluate and regulate chemicals. Accordingly, the chemical industry should be prepared to engage with EPA before it moves forward with new regulations in order ensure that its voice is considered before the EPA places restrictions upon any specific chemical.