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Using Competition-Based Regulation to Bridge the Toxics Data Gap

August 2009

Citation: 39 ELR 10789

Issue: 8

Author: Wendy Wagner

A person unfamiliar with the intricacies of chemical regulation in the United States might assume that regulators are hard at work weeding out dangerous products, requiring warnings on thousands of others, and collecting copious toxicity research on the rest. In truth, however, the regulatory regime in the United States works nothing like this. There is little information available to regulators for evaluating the possible hazards of chemicals, and even for the limited research that does exist, some unspecified portion of the scientific studies is at risk of being biased or otherwise unreliable. Moreover, since the U.S. Environmental Protection Agency (EPA) focuses most of its firepower on regulating individual chemical substances rather than chemical mixtures, consumers have little notion of the comparative toxicity of the chemical products on the market and lack adequate instructions regarding their proper use. There is simply no way to sugarcoat the ugly truth: chemical regulation in the United States has been a dismal failure.

The basic structure of the law governing toxic substances--the Toxic Substances Control Act (TSCA) -- deserves much of the blame for this regulatory dysfunction. In the regulation of chemicals, manufacturers are not required to do any testing unless commanded by EPA, and EPA must justify its demand with some scientific evidence. Due in part to this formidable burden, in the nearly thirty years of its regulatory authority, EPA has issued testing mandates for fewer than 200 chemicals. Most of the remaining chemicals, which include approximately 83, individual chemical substances, are effectively unrestricted and often unreviewed with regard to their health and environmental impacts. Even when there is considerable information indicating that a chemical is unsafe, as there was in the case of asbestos, EPA still must engage in a long and difficult regulatory struggle before imposing the "death penalty" on the hazardous chemical.

Wendy Wagner is the Joe A. Worsham Centennial Professor at University of Texas School of Law.

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