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15 June 2016

Halfway towards REACH in the United States?

On 7 June the US Senate approved a reform of the law on dangerous substances. With this vote the regulation of chemical substances will be reformed in a significant manner for the first time in 40 years. The text pays more attention to the environmental and health issues. Hitherto, economic criteria have largely outweighed any others.

The reform of the Toxic Substances Control Act (TSCA) will henceforth permit the Environmental Protection Agency (EPA), the government agency that authorises chemical products to be put on the market, to make its decisions in accordance with their impact on health and the environment. The decision will no longer depend on a cost/benefit analysis in which economic factors were able to nullify any regulatory initiative. For example, it has not been possible to ban asbestos in the United States because industry has always claimed that such a ban would involve excessive costs. The origin of this paralysis is a TSCA provision that requires that the EPA impose ‘the least burdensome requirements’, when it wants to impose restrictions on the production and sale of dangerous substances.

The confidentiality clauses that allow the industry to conceal information indispensable for better prevention should be more difficult to invoke. Between the entry into force of the TSCA in 1976 and 2016 the industry had invoked confidentiality clauses in relation to two-thirds of the 22,000 new substances brought to the market.

The evaluation of existing and of new substances should thus be carried out more systematically than in the past.

The EPA’s resources should also be augmented, with the industry being required to contribute. Up to now the EPA has only had very limited power and and its resources were derisory. While there are around 84,000 chemical substances on the American market the EPA has been in a position to demand tests on only 200 of them.

A particularly adverse state of affairs is that the federal states that adopt the most advanced legislation to protect human life or the environment are undermined when a decision is taken at federal level. Currently, the legislation of certain states – such as California, Washington state, Oregon, Massachusetts and Vermont – is much more developed than federal legislation

Furthermore, the EPA’s capacity to regulate dangerous substances found in imported articles will be very weak in the wake of amendment proposed by industrial lobbyists.

The law was voted on in a ‘bipartisan’ way – by a majority of Democrat and Republican representatives – after long negotiations between the Senate and the House of Representatives.

The reform can be considered a compromise between the demands of the chemical industry and public health and environmental protection concerns.

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