States Taking the Lead to Curb Toxic Chemical Exposure

by Katie Greenhaw, 10/22/2013

A new state law addressing toxic flame retardants recently enacted in California is the latest in a string of successful state efforts to improve chemical safety. In response to insufficient federal controls on toxic chemicals, many states have passed or proposed their own policies to protect residents from the risks posed by hazardous chemicals. In the absence of comprehensive national protections, it is imperative that states take the lead in addressing risks to health and safety.

The Need for State Action

The Toxic Substances Control Act of 1976 (TSCA), the nation's primary and outdated chemical safety law, has proved inadequate for regulating chemicals and ensuring that products are safe for the public. The U.S. Environmental Protection Agency (EPA) currently does not have sufficient authority to test and regulate the more than 80,000 chemicals now in use. Despite widespread acknowledgement of TSCA's shortcomings, efforts to improve the federal toxics law have failed thus far. Another federal law, the Consumer Product Safety Improvement Act, limits the amount of lead and bans certain chemicals known as phthalates in children's products, but it does not restrict the use of other toxic substances in consumer goods.

Dozens of states have initiated their own policies to address these gaps in chemical safety. Safer States, part of the Safer Chemicals, Healthy Families coalition, has kept track of the state policies proposed this year. According to their 2013 Toxic Chemicals Legislation Tracker, over 100 bills addressing chemicals were introduced across 29 different states as of September 2013. The group reported that over 34 states have enacted policies to protect residents from toxic chemicals.

Another database, the State Chemicals Policy Database run by the Chemicals Policy and Science Initiative, includes historical information on chemicals policies introduced and passed in the states. The State Chemicals Policy Database indicates that between 2000 and 2011, 379 policies were enacted in states, some through state legislation and others through local ordinances.

State and local actions vary. Many ban or restrict specific chemicals or limit the use of chemicals in certain products. Others set chemical reporting and disclosure requirements. Some states have also initiated comprehensive policies to identify and require the phase-out of the most dangerous toxic chemicals for safer alternatives.

Comprehensive Chemical Safety Policies

California is taking a national leadership role in developing a regulatory system to reduce public exposure to toxic chemicals in consumer products. As part of its Safer Consumer Products Program, California recently issued new rules designed to create safer substitutes for hazardous ingredients in products sold in the state. The regulations were required by California's Green Chemistry Law, Assembly Bill 1879, and represent a leading-edge, comprehensive effort to make consumer products safer.

Other states have also adopted California's more comprehensive approach to reducing chemical risks. Friends of the Earth President Erich Pica recently wrote that Maine, Minnesota, and Washington have all "launched programs designed to replace chemical-by-chemical regulation with across-the-board policies that address the big picture." Washington's more precautionary and protective approach has resulted in important actions, such as requirements that product manufacturers reveal the toxic chemicals in children's products. Reports indicate that more than 5,000 products contain high-priority chemicals of concern.

A bill proposed in Minnesota would address children's exposure to harmful chemicals by requiring product manufacturers to disclose chemical information and authorizing the state agency to prohibit sales of children's products that contain harmful chemicals. Similarly, a legislative proposal in Maine would require the disclosure of certain chemicals in consumer products, require the assessment of safer alternatives to priority chemicals in children's products, and allow the state to consider phasing out BPA in all food packaging.

Prioritizing Significant Threats

Many states have targeted specific chemical threats by enacting bans or restrictions tailored to certain chemicals and products. Safer States noted a few recent highlights including Minnesota's ban on formaldehyde in children's personal care products and Nevada's ban on BPA in baby food and infant formula containers. Maine also passed a ban on BPA in baby food containers after identifying safer alternatives to the hormone disrupter. States are also starting to address flame retardants, another serious toxic chemical threat that is found in countless home materials and products.

Flame Retardants

For decades, flame retardant chemicals have been widely used to reduce the flammability of furniture, clothes, carpets, building insulation, and a host of other products. However, studies have linked some of these chemicals to cancer, developmental problems, neurological deficits, and impaired fertility. A 2012 Duke University study linked early exposure to one flame retardant, called polybrominated diphenyl ethers (PBDEs), to low birth weight, lower IQs, and impaired motor and behavioral development. PBDEs were voluntarily phased out in 2004, but little is known about the health effects of the flame retardant chemicals and mixtures that have replaced them. A 2012 study published by the American Chemical Society concluded that other flame retardants "with considerable evidence of toxicity appear to remain at high or increasing levels of use," and some "appear to be replaced by less-studied chemicals whose health implications are unknown."

Growing concern about the serious health risks associated with toxic flame retardants has built momentum for state legislation to reduce or ban their use. This year, states have proposed at least 16 bills that address toxic flame retardants. One of those proposals was recently enacted into law. On Oct. 5, California Governor Jerry Brown signed a new law, AB127, directing the State Fire Marshal to determine whether builders can meet fire safety standards without adding flame retardants to insulation. Currently, outdated insulation flammability standards can only be met using chemical flame retardants. After reviewing the old standards, the Fire Marshal may propose updated standards that would let manufacturers and consumers choose insulation that meets flammability standards without the addition of toxic chemicals. The new insulation flammability law follows a California Department of Consumer Affairs proposal earlier this year to update flammability standards for furniture that will "reduce[] or eliminate[] manufacturers' reliance on materials treated with flame retardant chemicals."

Preserving State Protections

The state chemical safety policies adopted across the country highlight the need to protect the public from unaddressed risks when federal law does not provide sufficient safeguards and leaves many vulnerable to harm. However, health and safety advocates are raising concerns about current initiatives that threaten to undermine the progress made in California and in other states.

Proposed federal legislation to reform TSCA is currently pending in the Senate. But while modernizing TSCA to improve the law's outdated and unworkable provisions is long overdue, the proposed legislation, as currently written, fails to address several key deficiencies in the existing law and threatens to undermine state chemical safety laws and protections intended to fill the gaping holes in the federal law. Many environmental and public health advocates worry that the bill could preempt state chemical regulations like those in California and other states. In addition, the outcome of current trade negotiations between the U.S. and Europe could include provisions that preempt state laws and regulations.

Any federal legislation or trade agreement that overrides state chemical regulations would represent a major step backward in protecting the public's health and the environment. The significant improvements to toxic chemical safety that have succeeded in states can only continue if lawmakers protect the authority of states to adopt and enforce stronger chemical protections.