With No Federal Action, Wal-Mart Takes the Lead in Banning Chemicals - Is Retail Regulation the Future?

Is retail regulation the wave of the future?  At this site I have talked a lot about the attempts to reform the Toxic Substances Control Act (TSCA).  So far TSCA reform efforts have failed to produce any federal action to modernize the now 35-year old law.  But now, into this gap in federal-level regulation have come the "retail regulators."  Retail regulation is when influential retail stores like Wal-Mart, Toys-R-Us and Sears make unilateral buying decisions that could effectively ban chemicals of concern.  Call it The Wal-Mart Factor.

A recent article by Lyndsey Layton in the Washington Post discusses how Wal-Mart is "stepping ahead of federal regulators and using its muscle as the world's largest retailer to move away from a class of chemicals researchers say endanger human health and the environment."  Those chemicals, polybrominated diphenyl ethers (PBDEs), have been used as flame retardants in a wide range of consumer products, including computers, furniture, and toys.  With a worldwide buying power rivaling many national economies, when Wal-Mart speaks, manufacturers listen.  And since manufacturers and formulators aren't likely to make one product for Wal-Mart and another version of the same product for other distributors, chemical bans by Wal-Mart have the ripple effect of eliminating chemicals from products sold elsewhere.

As the article points out, this is not the first foray into retail regulation by big box stores.  Toys R Us, Sears, Kmart, Whole Foods, and others have started telling suppliers that products containing chemicals such as BPA, PVC, PBDEs and others will no longer be accepted.  This is caused many suppliers to reformulate their products to replace components of toxicological concern with those that are less hazardous.  The result, in effect, is a market-based ban on certain chemicals.  Though it should be clear that the reason Wal-Mart and the other retailers have made the decision to ban is because state legislatures have been taking action to limit chemicals in which health and safety studies have raised concerns. 

Since unilateral decisions by retailers and varied state-level action could create a patchwork of "regulation" across the country, this would seem to be more impetus for moving forward with federal-level action.  Such federal action should include a modernized and rational TSCA reform legislation that encourages both innovation by retailers and manufacturers and protection of human health and the environment.