You Snooze, You Might Lose — Your Expiring TSCA Confidentiality Claims

Among the many important revisions Congress made to the Toxic Substances Control Act (TSCA) in 2016 was an amendment establishing a 10-year cap on the length of time that commercially sensitive (e.g., trade secret) information — termed Confidential Business Information (CBI) — submitted to the U.S. Environmental Protection Agency (EPA) could be treated as “confidential,” absent an approved extension request. The initial 10-year period will expire in June 2026. Companies should begin to prepare for this deadline now, as the failure to act could be consequential.

Numerous large and small companies in the U.S. produce and use chemicals that are subject to TSCA. Many such companies are very concerned about inadvertent disclosure of their trade secrets to their competitors, so they understandably assert claims of confidentiality for commercially sensitive information when submitting it to EPA. When asserting such claims, EPA requires the submitter to include a detailed justification substantiating the validity of the claim.

TSCA CBI claims that are subject to the 10-year expiration date include claims for chemical identities and associations between companies and specific chemicals. Notably, the 10-year expiration date does not apply to information — such as marketing and sales information and specific production or import volumes — that is generally not subject to substantiation requirements under TSCA.

With the arrival of the new year, EPA has provided initial guidance on this looming June 2026 expiration date for some TSCA CBI claims, with the promise of more information to come this spring. Specifically, EPA’s announcement addressed its intent to publish a list of TSCA submissions with forthcoming CBI expiration dates and directly to notify original submitters of expiring TSCA CBI claims via the EPA’s Central Data Exchange (CDX) platform. Requests for extensions of CBI claims must be submitted to EPA no later than 30 days prior to their expiration date and companies must re-substantiate their CBI claims when requesting an extension. If extension requests are approved by EPA, information will generally remain protected for an additional 10 years.

Importantly, the failure to reassert a CBI claim is likely to constitute a waiver and loss of continued confidential treatment by EPA. Further, loss of continued confidential treatment of information may impact more than just the original submitter of the information. For example, if a CBI claim for a chemical identity is not reasserted and re-substantiated, the chemical will be moved to the public version of the TSCA Inventory. Once a chemical is on the public version of the TSCA Inventory, no party may make a CBI claim as to the identity of that chemical. Acknowledging that parties beyond the original submitter of the CBI claim may have an interest in maintaining the confidentiality of a chemical identity (for example users of a chemical or importers of a chemical no longer manufactured domestically), EPA’s guidance notes that any company with such an interest may request an extension of the CBI protection.

What Steps Should You Take Now?

With expiration dates on the horizon, we recommend that companies take the opportunity now to review any CBI claims made since TSCA was amended in June 2016, identify those with upcoming expiration dates, determine whether the information claimed as CBI continues to require confidential treatment, and begin preparing to re-substantiate claims for confidential treatment. For example, companies should review any CBI claims made as part of:

1. TSCA Section 5 Submissions: Claims made as part of premanufacture notices, significant new use notices, and exemption notices under TSCA Section 5 will typically expire 10 years after submission of the notice.
2. Chemical Data Reporting (CDR): The 2016 CDR reporting period took place from June 1, 2016 to October 31, 2016. CBI claims made as part of a 2016 CDR reporting submission that was submitted after June 22, 2016 (the date of enactment of the 2016 TSCA amendments) could expire beginning in June 2026.
3. Inspections Under TSCA Section 11: CBI claims as to information provided to EPA during a TSCA Section 11 inspection will typically expire 10 years after assertion of the claims.
4. Information Relating to TSCA Section 6 Actions: Companies may have submitted CBI to EPA in late 2016 and early 2017 relating to EPA’s identification of the first 10 chemicals to undergo risk evaluation under the amended TSCA and EPA’s development of scoping documents for these first 10 chemicals. CBI claims for such information will typically expire 10 years after submission of the information.
5. TSCA Inventory Notification (Active-Inactive): Reporting under the TSCA Inventory Notification (Active-Inactive) Rule occurred between August 11, 2017 and October 15, 2018. Thus, CBI claims made under this rule could expire as early as August 2027.

In light of the pending deadlines, and EPA’s plans and methods for alerting businesses of their expiring CBI claims, businesses should ensure that the contact information listed in EPA databases is current. Contact information may become outdated when key individuals leave the company or change jobs, or when companies reorganize, are acquired by another entity, or absorb product lines from another business. Companies that have experienced such changes must ensure that updated contact information is on file with EPA both to comply with EPA regulations and to ensure that they receive proper notice of expiring CBI claims.

Businesses that are “downstream users” (but not manufacturers) of chemicals also need be aware that their business may not have submitted an initial TSCA CBI claim, but may nonetheless have an interest in the continued protection of certain sensitive information as confidential under TSCA. Thus, downstream users should ensure that their suppliers are aware of relevant import confidentiality claims and the expiration dates for claims and are prepared to reassert and re-substantiate those claims prior to their expiration.

Arnold & Porter will continue to monitor for updates from EPA on the expiration of TSCA CBI claims and the process for reasserting and substantiating claims prior to their expiration. 

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.