Thursday, February 25, 2010

Are "Chemicals of Concern" Lists Really Blacklists for Chemicals?

As the TSCA reform process moves in fits and starts, with serious questions being raised recently because of the poor health of its major sponsor, Senator Lautenberg, and the continuing anti-science politics of the ranking minority member, one question floats to the surface. Does creation of a "concern list" mean that those chemicals will become blacklisted on the marketplace?

In short, probably yes.

Many countries have what can be called "negative lists," that is, lists of chemicals that the country believes are in need of either greater scrutiny to discern risk, or where risk has already been found to be unacceptable and the chemicals are slated to be banned or severely restricted. Besides the country by country lists, there are also international negative lists of chemicals to be banned or restricted, e.g., the persistent organic pollutants and CFCs in the Stockholm Convention and Montreal Protocols. There are also "positive lists" in which chemicals are added after they have been evaluated and found to be safe. It's possible we may be headed in the positive list direction with the new TSCA, but for now let's focus on the negative lists.

EPA has indicated in its recently released "action plans" that it will use one of the authorities it already has under the existing TSCA law to create what is called a Section 5(b)(4) Concern List. In Europe, the REACH regulation, which requires registration of all chemicals, both existing and new, also has a separate track called Authorization (the "A" in REACH). Under Authorization the new European Chemicals Agency periodically publishes a list of "candidate chemicals" that are "substances of very high concern" that will then be evaluated for possible banning and restriction.

The result of these "negative lists" is the same as for other negative lists, including ones such as the Wal-Mart list of chemicals they do not want to see in their products. Formulators and end product makers get pressure from consumers to remove these "bad chemicals" from their products, so they start to push back on their suppliers, who push back on the manufacturers of the basic chemicals, who start looking for alternatives that provide the same functionality without the risk.

So is this a good thing? Well, yes and no. Often a chemical gets targeted not so much for its actual risk but for its perceived risk or for its hazard, which because of the lack of exposure may actually not cause a risk at all. On the other hand, without any kind of pressure to replace inherently hazardous materials with inherently less hazardous ones, there isn't any incentive for companies to find alternatives. Why would a company spend a lot of money doing R&D to find a chemical to replace one that they already make, has extensive market penetration, and brings them significant profit? They won't, at least unless the manufacturer believes that some future event or change in attitudes or policy will cause his original chemical to become less favorable to the market. For market forces to work there has to be the potential for significant upside return on investment. Consumers have indicated they are willing to pay a little more to purchase more sustainable products, though it is often difficult to know if new products, e.g., cleaning products, are "green washers" versus "greenwashing." But without there being a way to identify "problem chemicals," the consumer has no way to make informed choices in the market place. Thus their only recourse is to assume that all chemicals in all products have been adequately tested and found to be safe. Consumers have come to realize that that is not the case and thus are less willing to simply take it for granted. Hence, the reason why negative lists may be one mechanism to encourage greater review of chemical safety.

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