Oregon Officials Want to Ban Toxins from Children’s Products. A Federal Bill Could Stop Them.

Leaded gasoline. Lead-based paint chips. Bisphenol A (BPA) in baby bottles. These are a few things parents no longer have to worry about, thanks to government standards and safeguards. But we still have a long way to go in protecting our children from hazardous chemicals. Manufacturers can still use toxins in children’s products – without disclosing them to consumers.

A new bill in Oregon would keep toxins out of children’s products sold there.

Under the proposed legislation, the Oregon Health Authority would create a list of chemicals of high concern. Any manufacturer of children’s products using these chemicals would have to report to the Health Authority and eventually phase out the use of those substances.

Here’s what makes this a strong bill:

  • It creates a priority list of chemicals that manufacturers are required to report. This includes toxins like cadmium, a heavy metal linked to learning disabilities in children, and bisphenol A (BPA), which can affect children’s developing brains. The Oregon Health Authority would add additional hazardous chemicals to the priority list every three years.
  • It establishes a searchable database of chemicals. Parents, child care workers, and other concerned citizens will be able to learn what chemicals are dangerous, how they affect children, and which manufacturers use them.
  • It broadly defines “children’s product” to include any product designed for, or marketed to, children under 12. Manufacturers have previously skirted limits on toxic chemicals in products like children’s jewelry by successfully arguing they don’t qualify as “children’s products.” Oregon’s bill specifically covers children’s jewelry and several other categories like clothing and kitchen accessories.
  • It gives the Oregon Health Authority the authority to penalize manufacturers who do not comply with the law. This includes fines up to $5,000 for the first violation and $10,000 for subsequent offenses.

Oregon’s bill is modeled on similar legislation in neighboring Washington State. Maine, Minnesota, and California also have laws restricting toxic chemicals in children’s products. And this January, Albany County, New York enacted a law that bans seven toxic chemicals from children’s products.

The scary truth is that our primary federal chemical safety law is ineffective and inadequate in testing and restricting thousands of high-risk chemicals in commercial use today.

The law that gives the U.S. Environmental Protection Agency (EPA) the authority to regulate chemicals – the Toxic Substances Control Act (TSCA) – is almost 40 years old. In that time, EPA has required testing for about 250 of the 20,000 new chemicals being used in commercial products and restricted a mere nine. (There are over 84,000 chemicals registered for use on the TSCA inventory.)

TSCA was poorly written; public agencies have to show “substantial evidence” of “unreasonable risk” in order to regulate a chemical. Thus, safety assessments and rules are routinely challenged by big chemical companies, and conservative courts have allowed them to endlessly delay restrictions on the most dangerous chemicals. By way of example, an EPA rule in 1989 called for a complete phase-out of asbestos, but the industry took EPA to court, arguing that the rule was too costly to businesses, and the ban was overturned. Today, the U.S. is one of the only industrialized nations without a complete ban on asbestos – a deadly substance with no safe level of exposure.

Congress is divided on how to reform TSCA; two opposing reform bills were introduced last week.

A bill to revise TSCA introduced by Sen. Tom Udall (D-NM) and David Vitter (R-LA) on March 10 threatens to undermine state chemical policies. Whenever EPA identifies a new chemical to review, states would be prevented from taking action on the same chemical. Vitter and Udall claim this is needed to prevent duplicate efforts by state and federal authorities. But it takes EPA seven or more years to issue regulations on a chemical. Blocking state action during this long delay would put people in harm’s way and benefits no one except chemical companies. This bill is supported by the American Chemical Council, the trade association and lobbying arm of big chemical companies.

What would passage of the Udall-Vitter bill mean for Oregon?

The 2015 Udall-Vitter bill would grandfather in some state chemical regulations enacted prior to Jan. 1, 2015. Most state chemical laws passed after this date would be at risk of being overturned. This means that Oregon’s new proposed regulations could be at risk even if they are in effect before the TSCA reform bill is enacted. The Albany County law mentioned above, which prohibits certain toxic metals and benzene (a cancer-causing chemical) in children’s products and apparel, would also be at risk.

States like Washington and California would retain their current chemical restrictions, but they would be unable to add any chemicals to their priority “chemical of concern” lists once EPA decides to review them. This would prevent states from taking action on toxic chemicals and leave the public at risk for several years while awaiting EPA review.

Finally, Oregon and other states would be prohibited from co-enforcing any state violations if they also violate federal law. In these instances, states would be prevented from collecting fines from manufacturers that ignore restrictions, which also cuts a source of funding for their chemical programs.

A bill that would improve chemical safety in the country, without undermining state standards, awaits action in the Senate.

Sens. Barbara Boxer (D-CA) and Edward Markey (D-MA) introduced the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act on March 12. The Boxer-Markey bill would correct major weaknesses in TSCA and preserve the ability of state and local officials to continue to protect their residents by adopting and enforcing stronger laws and rules. Significantly, the bill would require all chemicals be proven to pose “a reasonable certainty of no harm” – the same standard required for pesticides on fruits and vegetables and chemicals used in food.

After almost 40 years of largely failing to address the impact of toxic chemicals, and more than a decade of effort to address this problem, it’s time for Congress to act and adopt a bill that advances the public’s interest, not industry’s interests, and protects people and the environment from the risks of toxic chemicals.

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