July 26, 2012

Will Recent Action in the US Senate Result in

Seller Beware: Consumer Protection Insights for Industry

Following testimony during a hearing on July 25, and a contentious mark-up session the very next day, the Senate Environment and Public Works Committee approved amendments to Senator Frank Lautenberg's "Safe Chemicals Act of 2011" (S. 847) and, in a strict party line vote, decided to bring the amended legislation to the Senate floor. Chairperson Boxer oversaw the two sessions while simultaneously echoing the consternation of witnesses supporting the Lautenberg bill who complained about the Environmental Protection Agency's lack of effort in regulating chemical risks -- especially those attributed to consumer products in American homes.

The government's key witness, Acting Assistant EPA Administrator, Jim Jones (who is awaiting confirmation by the US Senate), and the majority's witnesses, blamed EPA's moribund chemicals-regulatory program on what they characterize as the out-dated, underlying statute, the Toxic Substances Control Act (TSCA). Enacted in 1976, many view the statute's core chemical regulatory provisions as in need of an overhaul. Hannah Pingree, the former Speaker of the Maine House of Representatives, spoke of her fears about chemicals that have been identified in samples drawn from her own body, and speculated that the origin of the chemicals had to be the furniture and personal care products in her own home.

If the Democrats on the EPW Committee are successful, significant amendments will be enacted to TSCA that could materially expand EPA's current authority -- placing the Agency at the helm of a colossal federal program. The bill reported out of Committee effectively would require that when the federal government assesses certain risks to the American public, EPA must take into consideration virtually every chemical substance that enters commerce -- including as components of end-user consumer products ranging from electronic devices to cleansers and detergents. Moreover, EPA would be required to determine which chemical substances meet a new federal "safety standard" and in doing so establish and set limits on approved uses for the substances.

A coalition of non-governmental consumer and environmental groups are supporting the Lautenberg bill, while a group of consumer product and chemical industry trade associations, while endorsing the need for TSCA reform, have expressed their opposition to the bill as drafted. It remains unclear whether the recent maneuvers by the EPW's Democratic majority will derail recently-initiated behind-the-scenes bi-partisan efforts to come up with compromise legislation.

© Arnold & Porter Kaye Scholer LLP 2012 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.

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