TSCA Reform Likely to Be a Lower Priority in 2011

TSCA Reform:

Chemical and Engineering News reports that representatives from several major US trade associations have stated publicly that they don’t expect modernization of the federal Toxic Substances Control Act (TSCA) to be a high priority for Congress in early 2011. Their statements are not surprising.  With fears of a double-dip recession still lingering, passage of a substantially revised TSCA seems unlikely in 2011, but with continued industry support, an improved economy, and a little bipartisan cooperation, it might occur in 2012.  (Assuming, of course, that the election doesn’t get in the way.  A big “if.”)

The Republican party controls the House of Representatives and it’s clearly stated its intentions.  Among other things, Republicans are determined to reduce the impacts on the deficit, national debt, and jobs that are associated with government regulation, including some forms of environmental regulation.  Adopting a more robust chemical control statute would likely require a substantial increase in EPA’s budget and it could have a significant ripple effect throughout the economy as downstream companies that don’t manufacture, but “process,” chemicals faced new requirements.  Also, at least some chemical manufacturers would need to generate expensive new health and environmental data.  And finally, there’s the risk that a new program could stifle innovation and affect the global competitiveness of the United States.

Notwithstanding support for reform coming from the American Chemistry Council (ACC), a trade association comprised primarily of chemical manufacturers, economic concerns – real or stated – could prove dissuasive in 2011 to a majority of Republicans in the House.  The Democratically-controlled Senate may be more inclined towards major near-term reform, but in the absence of sufficient support in the House, and with any Senate proposal likely less palatable to the chemical industry, such a goal seems unattainable.  At a minimum, the delay will give key members of the 112th Congress time to try to reach consensus on important points in the reform debate.

So, what will 2011 look like?  Unless there’s another crisis, such as tainted imported consumer products or an oil spill requiring the use of chemicals for which little safety information is publicly available, readers will probably see limited progress through 2011.  Closed-door meetings are certain to occur, a few hearings will take place and a bill may be introduced in the Senate – a bill may even be introduced in the House – but proposals are unlikely to advance significantly in the near-term.  Economic considerations will affect both the resources committed to the TSCA reform debate, as well as the details of any legislative proposals.  Efforts occurring in 2011 will be undertaken in the name of trying to adopt “sensible” reform that protects the environment and health without damaging the economy. 

With the Administration already taking steps to reconcile past differences with business leaders in preparation for the 2012 election, it seems unlikely that the White House will push for robust new legislation either.  So, don’t look for major legislative proposals coming from EPA anytime soon.  However, expect the ACC and others to try to persuade the Administration that TSCA Reform is a potential opportunity for bipartisanship. 

But what about the public’s and the states’ outcry for a more robust federal chemical regulatory program?  And what about the consensus among the chemicals industry, EPA, and environmental groups on the need for reform?  The outcry and the consensus are important and should not be dismissed for ultimately they will help ensure passage of a revised TSCA.  However, for the next year (and possibly longer), jobs creation, debt reduction, election politics, and efforts to reach consensus, are likely to delay reform.  In the interim, EPA will probably continue with its attempts to use existing authority to address chemical risks, despite promises of increasing Congressional oversight.  

Rescheduled: ABA Program on Nano Governance


Due to scheduling conflicts, this program is being re-scheduled for sometime between mid-March and mid-April.  When a new date is set, program details will be available here.


Save the Date: Exciting Upcoming ABA Program on Nano Governance


For readers interested in the current state of play regarding governance of nanotechnology, the ABA Pesticides, Chemical Regulation and Right-To-Know Committee, along with other committees listed below, is organizing the following half-day event.



January 27, 2011



Please mark January 27, 2011, on your calendar for an exciting program under development by the Pesticides, Chemical Regulation, and Right-to-Know Committee and the Science and Technology Section, Nanotechnology Committee. Program co-sponsors include the Young Lawyers Division Administrative Law and Environment Energy and Resources Law Committees and the Section on the Environment and Energy Resources, Environmental Disclosure Committee.

Program:  Nano Governance:  The Current State of Federal, State, and International Regulation

Date:  Thursday, January 27, 2011

Time:  1:00 – 5:30 p.m. (EST).  Networking reception immediately following.

Tentative Program Overview:

  1. The Federal Regulatory Outlook
  2. Beyond The Feds:  International/State Regulatory Programs and Strategies for Addressing Nanoscale Materials
  3. Perspectives from the Field


More details to follow shortly, but for questions on this tentative program, please contact Irene A. Hantman at ihant001@umaryland.edu.

Also remember that the PCRRTK Committee web page provides you with access to valuable resource materials and analysis from past programs, newsletters, reports, and Practitioners E-reference documents covering a wide range of pesticide, chemical regulation, and right-to-know legal issues.  Please visit us at http://www.abanet.org/environ/committees/pesticides.


EPA Requires Testing of 19 High Production Volume (HPV) Chemicals

TSCA/HPV Chemicals:

On January 7, 2011, EPA published a final rule under section 4(a)(1)(B) of theToxic Substances Control Act (TSCA), (15U.S.C. 2603(a)(1)(B)), requiring manufacturers, importers, and processors to test 19 high production volume (HPV) chemicals.  The rule, which takes effect on February 7, 2011, requires these persons to obtain screening level data for health and environmental effects and chemical fate, and then provide that data to the Agency.  The rule is one of a series of actions that EPA is taking to ensure that it has the data necessary to adequately review priority chemicals.  In addition, now that the Agency has issued a final test rule, any person (including those required to test) who exports, or intends to export, any of the 19 chemicals will be subject to the export notification requirements in 40 CFR part 707, subpart D.  The chemicals are listed below:


Chemical Name




1,3-Propanediol, 2,2-bis[(nitrooxy)methyl]-, dinitrate (ester)






2,4-Hexadienoic acid, (E,E)-


Phenol, 4,4′-methylenebis[2,6-bis(1,1-dimethylethyl)-




Ethanedioic acid


Methanesulfinic acid, hydroxy-, monosodium salt


Phosphorochloridothioic acid, O,O-diethyl ester




D-erythro-Hex-2-enonic acid, g-lactone, monosodium salt


D-gluco-Heptonic acid, monosodium salt, (2.xi.)-


C.I. Leuco Sulphur Black 1


Castor oil, sulfated, sodium salt


Castor oil, oxidized


Benzenediamine, ar,ar-diethyl-ar-methyl-


Alkenes, C12–24, chloro


Hydrocarbons, C > 4

The 19 chemicals were originally included in the voluntary High Production Volume (HPV) Challenge Program, which “challenged” companies to make health and environmental effects data publicly available on chemicals produced or imported in the United States in the greatest quantities.  HPV chemicals are classified as those chemicals produced or imported in the United States in quantities of 1 million pounds or more per year.  EPA has determined that HPV chemicals account for approximately 95% of total chemical production in the United States.  As of June 2007, companies sponsored more than 2,200 HPV chemicals, with approximately 1,400 chemicals sponsored directly through the HPV Challenge Program and over 860 chemicals sponsored indirectly through international efforts.  However, no data were provided for the 19 chemicals, making a mandatory test rule necessary.

More information on EPA’s HPV Challenge Program is available here.

Crocs Shoe Company Settles FIFRA Enforcement Action with EPA


On December 30, 2010, EPA announced a settlement under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) with Crocs, Inc., the company famous for its ubiquitous, colorful foam clogs.   EPA alleged that Crocs violated FIFRA by making unsubstantiated antimicrobial health claims on its website, in advertising, and on packaging for several styles of the Company’s shoes.   Pursuant to the settlement agreement, Crocs will remove the offending language and pay a $230,000 penalty.  The Company will undoubtedly incur significant additional expense to revise its advertising materials, field questions from distributors and worried customers, and take other steps necessary to ensure future compliance and help protect the Crocs brand.  A copy of the settlement agreement is available here.

This case is another unfortunate example of the relative ignorance of many consumer products companies about the application of FIFRA to consumer products treated with antimicrobials or other pesticides.  One would not normally consider shoes to be a pesticide product, but under FIFRA, they can be.  Making an antimicrobial public health claim about a product (usually because of a chemical applied to the product) is one of the easiest ways to make a cutting board, computer keyboard, etc., subject to FIFRA.  Many companies simply don’t understand this, or they mistakenly think their products qualify for the “treated articles” exemption and therefore they don’t need to worry about FIFRA.   (More on the “treated articles” exemption in a minute.)  EPA’s enforcement docket is littered with past examples of such mistakes.

Simply stated, products that claim to kill or repel bacteria or germs are considered pesticides under FIFRA.   FIFRA requires companies to register pesticide products with EPA before selling, distributing, or making public claims about their ability to control germs or pathogens.   The registration process can be time-consuming and expensive because EPA will not register a pesticide until it has been shown, through testing, not to pose an unreasonable risk when used according to the label’s directions. 

Companies often aren’t aware of the scope of the registration requirement.  Others are aware of it, but  believe (mistakenly) that their products qualify for the “treated articles” exemption in 40 CFR 152.25(a).  Eligibility for this exemption is not as straightforward as it might seem.  In a nutshell, the exemption requires: (1) the incorporated pesticide to be registered for use in or on the article and (2) the sole purpose of the treatment to be protection of the article itself.  Implied or explicit public health claims for protection against bacteria, fungi, viruses, or other pathogens (e.g., “antibacterial”) are prohibited since they show that treatment was not solely for protection of the article itself.  Companies commonly make claims broader than those allowed or they fail to confirm that the registration covers treatment of their specific type of product.  The result is a violation of FIFRA with all the pain and expense that entails.

Where does this leave a consumer products company wanting to capitalize on society’s germ phobia?  Well, before succumbing to the sirens’ song from Marketing or Sales about the new marketing opportunities, usually an in-house counsel, product steward, or other EH&S professional inquires about FIFRA compliance.   If shrugs or blank stares are returned, that person will arrest the momentum and probe the issue further.  (Disclaimer:  This is a practical observation and not legal advice.)  EPA has helpful guidance , and other information is available on its website, here and here.