By Veronica Tinney and Jerome Paulson

Children breathe more air, drink more water and eat more food per unit of body weight than adults.  Therefore, if a child’s air, water or food is contaminated with chemicals, children receive a larger dose per unit of body weight than would an adult in the same situation.  The Toxic Substances Control Act (TSCA) has been unable to regulate chemicals effectively, and new chemical legislation must consider these key physiological differences.

TSCA, which became law in 1976, gives the Environmental Protection Agency (EPA) limited authority to regulate chemicals for safety. Its weaknesses include the fact that it grandfathered in more than 60,000 chemicals without requiring toxicity testing, and if EPA thinks a chemical needs to be restricted, the burden is on the agency to prove harm – not on the manufacturer to demonstrate safety. The proposed Chemical Safety Improvement Act (CSIA) would allow EPA to issue orders requiring testing of chemicals, and give EPA 90 days to review information on new chemicals before they go onto the market. Yet the CSIA, now with 25 bi-partisan sponsors, not only fails to reform chemical policy, but introduces legislation that may actually weaken protection of children from chemicals.

Prominent environmental organizations have both supported and opposed the CSIA, however the American Academy of Pediatrics has not endorsed the CSIA, based on its deficiencies in creating legislation that would better protect children from chemicals.

In assessing the ability of the new chemical legislation to adequately protect children from chemicals, the following are several of the contentious aspects of the proposed CSIA:

Safety Standard: Under the CSIA, the EPA would have to determine whether chemicals, under their intended use, meet a safety standard.  The safety standard, different from the ultimate safety determination, is a standard that states chemicals must not have “unreasonable risk of harm to human health or the environment.”   Although the CSIA states that the exposure of vulnerable populations and multiple exposures to a chemical must be considered, it does not mention children or other vulnerable populations in the safety standard.  Aside from the omission of language protecting children, the CSIA includes cost-benefit analysis, similar to current TSCA legislation.  Even if the EPA finds that the chemical does not meet the safety standard, the law allows for the chemical to have an acceptable amount of risk.

New and Old Chemicals: For new chemicals, companies would be required to give a 90 day notice of introduction into the market, in which the EPA would assess if the chemical is likely or unlikely to meet the safety standard, or requires more information.  If a chemical is found to require more information, the EPA may allow for the chemical to be marketed until the EPA makes its final determination.  In addressing the 85,000 plus chemicals already in commerce, the EPA will assess whether chemicals are a “high priority” or a “low priority” for safety determination, based on existing information.  For the safety determinations of all chemicals, new and old, chemical companies would not be required to fund evaluations, and the burden would remain on the EPA.

State Preemption: In 2013, 29 states introduced chemical legislation, ranging from bans on Bisphenol A (BPA) in cash register receipts to bans on cadmium in jewelry.  However, this type of state-level regulation of chemicals, including California’s Proposition 65, could be pre-empted by federal decisions on a chemical’s safety through the CSIA.  Further, if the EPA were to find a chemical to not have “unreasonable risk,” chemical companies would be protected from civil action from persons injured by the chemical.

Without explicit protection of children and other vulnerable populations, we cannot assume that these populations will be considered when regulating chemicals.  Though there is no doubt that existing legislation on chemicals must be reformed, currently the CSIA does not reflect any improvement in chemical policy.

Veronica Tinney, MPH
Jerome A Paulson, MD, FAAP
Child Health Advocacy Institute
Children’s National Medical Center

The views expressed in this blog post do not reflect the opinion of the Child Health Advocacy Institute or Children’s National Medical Center, and author affiliations are for identification purposes only.