Adam Abelkop

Regulation of Chemical Risks: Lessons for Reform of the Toxic Substances Control Act from Canada and the European Union

The United States Congress is considering reform of the Toxic Substances Control Act (TSCA) of 1976. This Article compares recent reforms in Europe and Canada in order to draw lessons for TSCA reform. In 2006, the European Union enacted the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation while Canada used existing authority under the Canadian Environmental Protection Act (CEPA) of 1999 to initiate the 2006 Chemicals Management Plan (CMP). Focusing on the tens of thousands of industrial chemicals now in use in the US, we offer several suggestions for TSCA reform based on the European and Canadian experiences. Congress should consider applying the Canadian approach to prioritization, where high-priority chemicals are identified for assessment and regulation based on limited data and modeling/screening exercises. To facilitate more expedient safety determinations, TSCA reform legislation should separate risk assessment from risk management decisions. Under either approach, improved chemicals governance will require significant new public and private investments in safety information and deliberations. Finally, Congress should consider applying European-style chemical registration to high-priority substances, placing the burden of generating data and proving the safety of specific uses on industry. In summary, an industry obligation to register high-priority chemicals and defend the safety of specific uses would bring new life to TSCA, enhance public health and environmental protection, and buttress public confidence in federal regulation of industrial chemicals.

Principles and tools of chemical regulation: a comment on 'the substitution principle in chemical regulation: a constructive critique'

In this short comment, we make three points. First, replacing one chemical with another should be seen as only one of a portfolio of tools to manage the risks of existing chemicals. Substitution is preferable when it offers attractive benefits (relative to costs and risks) compared to the next-best alternative measure. Depending on the nature of the market failure and the cost-effectiveness of alternative measures, chemical replacement may or may not be the preferred remedy. Second, the principle of substitution, like its close cousin precaution, is a guideline for consideration by decision-makers rather than a policy tool. Confusion can arise when the principle of substitution is treated as if it is an operational tool. Finally, the most difficult challenge in chemicals risk management is how to create proper incentives for continuous safety improvements through a variety of risk management measures, including substitution. Chemicals already on the market have a commercial advantage over chemical innovations that may be safer, greener and otherwise preferable. We offer some general comments about how the incentives faced by industry can be modified to accelerate risk management, including advances in green chemistry.