1976 Toxic Substances Control Act May be Revised to Limit Secrecy Provisions
The Toxic Substances Control Act (TSCA) was enacted by Congress and signed into law by President Gerald Ford in 1976, in response to concerns that there was no comprehensive framework for the prevention of risks that might be posed by the approximately 60,000 chemical substances in commercial use at that time.
The TSCA addressed three policy goals: (1) the manufacturers of chemicals should develop data about the effect of those chemicals on health and the environment, (2) the government should have authority to regulate chemicals to prevent "an unreasonable risk of injury to health or the environment" and (3) the government's authority should be exercised in a way that does not "unduly impede or create unnecessary economic barriers to technological innovation." The EPA was given the power to track, test and regulate chemicals used in the U.S.
Under the TSCA, manufacturers are required to file a report with the federal government disclosing the new chemicals they intend to market. The report is called a pre-manufacture notice. The form on which the notice is submitted contains a box that can be checked to claim competitive business information. The ability to claim that the notice contains confidential business information was intended to balance the goal of preventing unreasonable risk of injury to health or the environment with the goal of not impeding or creating unnecessary economic barriers to technological innovation. The TSCA prohibits the EPA from sharing confidential business information with states or other governmental entities, including state health regulators, environmental regulators, emergency responders and foreign governments.
Approximately 700 chemicals are introduced annually. In the past several years, approximately 95% of the pre-manufacture notices for these new chemicals requested some secrecy, claiming that the notice contained competitive business information. Because of that claim, information about the new chemicals was kept confidential.
Critics claim that the secrecy has grown out of control, making it impossible for regulators to control potential dangers. Additionally, consumers concerned about the chemicals they could be exposed to, are unable to find out what is meant by "inert ingredients" or "proprietary ingredients" on labels.
During 2009, the U.S. House of Representatives held two subcommittee hearings on legislative reform of the TSCA. In December 2009, the Senate also held a hearing on the TSCA. While no bill is yet pending, it is anticipated that such a bill will be introduced in 2010. Both Senator Lautenberg (D-NJ) and Senator Boxer (D-CA) have indicated that this is a priority.
Steve Owens, who became Assistant Administrator for the EPA's Office of Prevention, Pesticides and Toxic Substances in July 2009, ended confidentiality protection for 530 chemicals just a week after taking the job. This support by the Obama administration, along with pressure from environmental groups, is a sign that chemical companies may soon have to prove the need for secrecy, and not merely check a box if they intend to keep their chemicals secret.