The Business Council opposes this legislation, which would mandate the Department of State implement a chemical review process for which they do not have the staff, resources or expertise. Under this legislation, New York would have to undertake an expensive, highly scientific review to make concrete determinations about the toxicity of chemicals and their potential harm to the public. New York does not have the financial resources or expertise to execute such a review.
The Business Council strongly believes that independent, well-financed national and/or international regulatory bodies dedicated to the protection of human health, including a focus on sensitive populations, should review suspected health hazards when legitimate concerns are raised.
Some advocates have claimed that this legislation would mirror the reporting requirements of other states programs. This simply is not true. The Washington State law that has been estimated to cost businesses up to $27.6 million.
Toxic Substance Control Act (TSCA)
More than a dozen federal laws currently create a safety net to oversee the safe use of chemical products, including Toxic Substance Control Act (TSCA), which gives the U.S. Environmental Protection Agency (EPA) authority to review and regulate chemicals in commerce. TSCA was designed to ensure that products are safe for intended use. On June 7th, the US Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576), which amends TSCA. The passage in the Senate follows passage of the same bill by a margin of 403-12 in the US House of Representatives on May 24. The President is expected to sign the bill.
The overhaul will eliminate a requirement forcing the EPA to prove a chemical is toxic before demanding more testing. It also reduces a lot of the red tape that has hampered previous EPA regulatory reviews. For example, the EPA will now be able to shift its focus on chemicals already in the marketplace in order to better protect consumers and improve its collection of data from chemical manufacturers. Safety reviews will become purely science-based by phasing out a rule that included regulatory costs as part of the EPA's scrutiny.
Also, a new chemical must be declared safe before it enters the marketplace. Under current law, a chemical can enter the marketplace unless the EPA claims it is unsafe within 90 days.
Consumer Product Safety Improvement Act (CPSIA)
History provides us cautionary tales of similar legislation that fostered uncertainty in consumers, retailers, and manufacturers. The Consumer Product Safety Improvement Act (CPSIA) and Maine's Kids Product Safety Act, were both drafted with the best intentions.
When Congress drafted the CPSIA, limited consideration was given to the potential for exposure. Without this consideration, objects that pose no harm are treated as dangerous.
As a result of CPSIA, thrift stores and other resellers and distributors of used books were ordered to discard children's books printed before 1985 (unless they wished to test for lead or take other typically unpractical steps such as contacting manufacturers). Many older children's books have painted decorative titles and other cover embellishments that contain extremely small quantities of lead, which is unlikely to result in exposure.
It was not until August of 2011 that federal reforms provided the publishing and printing industries with the certainty that they looked to obtain, but this happened after countless used chapter books were destroyed.
Maine's Kids Product Safety Act
The passage of Maine's Kids Product Safety Act resulted in an increased level of uncertainly in the business community. Maine's business community urged the legislature to alleviate this significant deterrent to investing in Maine. Specifically, Ben Gilman of the Maine Chamber of Commerce said: “With the 1,751 ‘chemicals of high concern' list hanging over their heads, why would any business make an investment or take a risk here not knowing when or if the chemicals they use in their products would be next." The Maine legislature reacted to the valid concerns of businesses with a revamping of the legislation.
Many of the problems inherent in CPSIA and with Maine's Kids Product Safety Act are contained in this legislation.
A major concern with this legislation is that its definition of “children's product" is very broad, and includes any item, including its component parts and packaging, that is designed or intended for use by children aged 12 or younger. Under such an expansive view, how would a manufacturer, importer or distributor be able to determine whether or not a personal care product, such as soap, shampoo or toothpaste is intended for children? This will affect entire sectors in manufacturing, business and retail that may be required to discontinue commonly used products.
The bill does not contain a de minimis concentration exemption. The European Union's R.E.A.C.H. program sets an upper limit of 0.1 percent for substances of very high concern, including carcinogens, mutagens and reproductive toxins.
De minimis concentration exemptions are important as they can provide certainty to manufacturers of products that contain recycled content. Maine amended its legislation to include a de minimis exemption to address these legitimate concerns.
The legislation specifically excludes from the definition of “children's products," consumer electronic products enclosed with a secure housing, recognizing that risk is determined by the threat of actual exposure. This bill does not allow the regulatory bodies to consider similar exemptions for other product categories where there might be no risk because there is no pathway to exposure.
New York should allow the reform of the federal Toxic Substances Control Act (TSCA) and EPA's completion of its designated chemical action plans. This would provide a sound, national statutory and regulatory system that all businesses and manufacturers, including those in New York, can follow. New York should work with the federal government and take advantage of its resources in addressing issues of importance to the state in terms of chemical regulation.
For these reasons, The Business council opposes adoption of this bill.