Monday, January 4, 2010

"Secret Chemicals" a Target of TSCA Chemical Control Reform?

In this space I have been tracking the ongoing efforts of the current Congress to modernize the 33-year old Toxic Substances Control Act (TSCA), which is the primary law governing the regulation of chemicals in the United States. One of the issues that hasn't received too much press yet is the question of Confidential Business Information (CBI), which advocacy groups like to refer to as "secret chemicals."

The current TSCA gives companies the right to claim certain information on their new chemicals as "confidential." This was designed to protect companies from having to disclose information to their competitors that would effectively eliminate the advantage of developing a new chemical. Without this provision it makes no sense for a company to spend millions on research and development, only to have their competitors just use their information to copy them.

However, EPA and advocacy groups have argued that industry has taken advantage of the provision to keep not only the names of the chemicals secret but even such things as who makes it, which has occasionally led to some emergency response problems and safety research limitations. Steve Owens, EPA Assistant Administrator for the Office of Prevention, Pesticides and Toxic Substances ended the confidentiality protection for over 500 chemicals within a week after taking the job in July of last year. His reason? Because "people...saw that they can claim virtually anything as confidential and get away with it."

So it seems highly likely that there will be some provision in "the new TSCA" (or Kid Safe) when it is finally reintroduced that will restrict the amount and type of information that can be claimed as confidential. Also, it is highly likely that there will be a switch in how confidentiality is decided. In the past it was EPA that had to decide the claim should be refused, but EPA really didn't have the resources to do that so pretty much anything that was claimed was accepted. In the new TSCA I would expect that the notifier would have to provide some proof that the claim is necessary to protect its business.

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