June 25, 2015

Consumer Products Manufacturers Take Note: House Passes Chemical Safety Legislation

Seller Beware: Consumer Protection Insights for Industry

The US House of Representatives has decisively taken the lead in the two-step dance that could update and reinvigorate the nearly 40 year old Toxic Substances Control Act (TSCA). Makers and processors of chemical substances and producers and distributors of consumer products have been monitoring legislative action on TSCA modernization efforts for nearly a decade. Suddenly, amendments to TSCA appear to be on an incredibly fast track even as we lurch into the hazy days of summer on Capitol Hill.

TSCA gives EPA broad authority to regulate chemical substance, including the products into which they are blended, including consumer use products. Legislation has been repeatedly introduced in both legislative chambers reflecting Congress' and the Administration's mutually held belief that the Agency's authority under TSCA has been under utilized by EPA due to the burdensome procedures established in the nearly 40-year old law.

In an overwhelming 398-1 vote taken during a suspension bills session June 23, the House overwhelmingly passed the TSCA Modernization Act of 2015 (H.R. 2576). The bipartisan bill was reported out of committee unanimously earlier this month on the promise that certain fixes would be made prior to the floor vote. Key changes made following mark-up were engineered by the bill's chief sponsor, Illinois Republican John Shimkus, and New Jersey Rep. Frank Pallone Jr., an indispensable Energy and Commerce Committee Democratic co-sponsor. If the Senate takes similar action on its own TSCA reform bill later this summer, the first significant piece of bipartisan environmental legislation in decades could be sent to the President for signature later this year.

On April 28, the Senate Environment and Public Works Committee marked up S. 697, the version of TSCA reform legislation that grew out of a bill originally co-sponsored by the late Senator David Lautenberg (D-NJ) and Louisiana's Senator David Vitter (R-La.). The Lautenberg-Vitter bill was considerably modified to appease the concerns of certain states and environmentalists prior to its reintroduction by Senators Tom Udall (D-NM) and Vitter, who also renamed the bill to honor the late Senator Lautenberg. Curiously, Senator Boxer opposes the Senate's own bill, and, having gained little traction for her own TSCA reform bill, now proclaims her support for the House bill.

The Senate bill represents a more comprehensive overhaul of TSCA, making amendments to or replacing virtually every section of the current law, while the House version makes more targeted amendments to the risk assessment and risk management provisions of TSCA. Nevertheless, as the debate over the bills has matured, amendments have been adopted that have increased the similarities in the House and Senate legislation.

Of interest to the makers of consumer products, both bills specifically address EPA's authority to use TSCA to regulate finished products. Both the House and Senate bills would amend the provisions that provide EPA authority to evaluate chemical substances already in commerce and simplify the procedural hurdles EPA must meet to impose restrictions on substances to mitigate unreasonable risks to human health and the environment. Persistent and bioaccumulative chemicals would receive special attention under both bills. The bills would establish timelines that require EPA to take regulatory actions within a specified period after commencing and completing a safety assessment for a chemical substance. Moreover, the House and Senate versions would enable a chemical manufacturer to request that EPA undertake an assessment and reach a determination concerning the safety of the current and intended uses of a substance -- provided the Agency's costs for doing so are paid by the manufacturer. The bills would modify the current law so EPA could release confidential information on chemical substances to state and local agencies for purposes of state regulatory and enforcement programs. The legislation under consideration in the Senate would, like the House bill, impose what are likely to be significant new fees on the chemical industry to offset EPA's costs of its chemical risk assessment and management program. The bills both provide for partial preemption of state chemical regulatory actions, although both grandfather in state laws enacted before August 2015.

The Senate has not scheduled a date for a floor vote on its own bill, but a vote is expected before the summer concludes.

© Arnold & Porter Kaye Scholer LLP 2015 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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