Two Toxic Substance Control Act (“TSCA”) reform bills are pending in Congress, and provisions could have many businesses looking for chemical substitutes. The most important change for businesses is the proposed provision that would require manufacturers to prove the safety of chemical substances as a prerequisite to the new or continued use of a substance. The bills also would give EPA expanded power to ban substances the EPA determines are not safe. A business that manufactures or sells products containing a banned substance would need to find an acceptable alternative, and this could be difficult when all of a business’s competitors also would need to find alternatives. At least at the outset of any ban, there likely would not be enough capacity in the supply chain to meet the demands of all businesses trying to secure suppliers of alternative materials.
Given the political shift in the House, it is not certain if any TSCA reform will pass this year. EPA, however, is not waiting for Congress to act. Under the Obama Administration, EPA has been aggressively pursuing increased regulation of chemicals and has issued a “hit list” of chemicals it is targeting. Companies that manufacture or sell products containing any of these “hit list” chemicals would be wise to closely follow EPA action and consider alternatives where feasible.
The states are becoming increasingly frustrated with the federal government’s perceived inaction in the area of chemicals regulation and are passing their own chemicals regulations. On January 19, 2011, legislators in 30 states announced legislation aimed at protecting children and families from toxic chemicals. Companies that conduct business in more than one state will need to be aware of state law developments.
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