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Comment on Using Competition-Based Regulation to Bridge the Toxics Data Gap

August 2009

Citation: ELR 10796

Author: Mark Greenwood

In her Article, Prof. Wendy Wagner takes on one of the core challenges of U.S. chemical management policy: how to assure that useful toxicity data is generated about chemicals in commerce. She offers a creative proposal for harnessing competitive instincts in companies to assure that such data are developed. As described below, there are important questions about whether this proposal will actually work in practice. At the same time, the history of chemical regulation in the United States has taught us that our assumptions about how the market will respond to specific regulatory policies are often wrong. In that context, this proposal and other experimentation with competition-based regulatory initiatives deserve serious attention.

At the outset of the article, Professor Wagner presents a fairly pessimistic assessment of the current state of information about chemical risk in our society. She presents her perspective on the failures of the Toxic Substances Control Act (TSCA) to generate necessary toxicity information about chemicals, arguing that the U.S. Environmental Protection Agency (EPA) is stuck in a "cops and robbers" legal framework that stymies its ability to force testing by regulation. She also indicates that the marketplace and the tort liability system provide additional disincentives for chemical producers to generate and disseminate information about their products. Her conclusion is that "multiple, entrenched incentives for ignorance help explain the substantial lack of toxicity testing for most chemicals in the United States."

Mark Greenwood is a partner in the Washington, D.C., office of Ropes & Gray LLP.

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