Chemicals in Consumer Products: Safe Until Proven Toxic or Toxic Until Proven Safe?

The Environmental Working Group’s 2004 study Body Burden – The Pollution in Newborns found a total of 287 chemicals in the umbilical cord blood of 10 newborns. This study has since spurred nationwide debate over the safety of chemicals used in consumer products. Under current law, chemicals used in consumer products are deemed safe until proven toxic, but in light of growing public concerns over the health risks associated with chemical exposure, lawmakers are being pressured to re-write chemical regulations and consider chemicals toxic until proven safe.

The Toxic Substance Control Act (TSCA) of 1976 is the environmental law that gives the Environmental Protection Agency (EPA) the authority to obtain information on the risks of chemicals and to control those that it determines to pose an unreasonable risk. Having never been modernized since its inception, one of the many weaknesses of the outdated law includes allowing chemicals to be considered safe until proven toxic by the EPA, not toxic until proven safe by the manufacturer.

Chemical manufacturers are not required to show that significant data exists to fully assess a chemicals risk. The TSCA puts the “burden of proof” on the EPA to prove that the chemical is dangerous and “presents an unreasonable risk of injury to health or the environment”. Lisa Jackson, the new EPA Administrator, stated in an announcement on September 29, 2009 that “not only has the TSCA fallen behind the industry it’s suppose to regulate, it’s been proven an inadequate tool for providing the protection against chemical risks that the public rightfully expects”. She also states the TSCA rules make identifying a chemical from safe to toxic is “inordinately cumbersome and time-consuming” and “creates obstacles to quick and effective action”. Perhaps that is why since 1976, the EPA has only evaluated 200 chemicals for safety and issued regulations to control only five existing chemicals in a sea of more than 80,000.

In the late 80’s the EPA issued rules phasing out most uses of asbestos due to the health effects it had on so many Americans, only to have it overturned by the US Fifth Circuit Court of appeals. The court stated the EPA failed to clear many of the hurdles presented by the TSCA including showing that asbestos presented “unreasonable risk” and that banning and replacing it with a safer chemical was the “least burdensome approach”.

With mounting concerns over chemical exposure, the Obama administration is taking a different stance than its predecessor’s administration, which defended the effectiveness of the TSCA. The Obama administration plans to promote a new chemical law in Congress that puts the responsibility on industry to prove its chemicals are safe. In the meantime the EPA will begin to analyze and regulate 6 high-profile chemicals that have raised health concerns, bisphenol A, phthalates, brominated flame retardants, perflourinated compounds, parafins, and benzidine dyes. The EPA is also putting into effect 4 Chemical Action Plans, with the first scheduled for this past December with additional plans to be issued every 4 months thereafter. Although many will agree that it’s a step in the right direction, to put it into perspective, over 60,000 chemicals were grand fathered in at the start of the TSCA and 20,000 plus have been put into circulation since.

Expectations are high for the Jackson lead EPA, since in January of 2009 the Government Accountability Office (GAO), an investigative branch of the US Congress, released a statement concerning the EPA and its toxic chemical assessment “as a high
risk area of the government, susceptible to high levels of waste, fraud and abuse or in need of transformational change to achieve greater efficiency, effectiveness, and accountability.” GAO also stated regarding their reports that, "Neither Congress nor EPA has implemented the most important recommendations aimed at providing EPA with the information needed to support its assessment of industrial chemicals. Without greater attention … the nation lacks assurance that human health and the
environment are adequately protected."

“In this regulatory environment, where the consumer protections from environmental toxic exposure are clearly not in place, the only choice that a conscious consumer has is to purchase and use only products that have thrid party certification, such as USDA Organic or NPA Natural. Without that, the products could contain any number of toxic ingredients and consumers would be hard pressed to know what the dangers are,” states Karen Ciesar, Founder and Formulator, Trillium Herbal Company, Inc.