New toxics legislation aims for safe. But is it sound?
In April, the Safe Chemicals bills were introduced into the U.S. Senate and House of Representatives, designed to oveahaul the 1976 Toxic Substances Control Act, or TSCA. This is probably old news to most of you. Since your business has probably been laboring under the regulations of the Environmental Protection Agency for decades when it comes to formulations of your products, you’re already anticipating what’s to come — the good, the bad and the ugly.
But for those of us in the nanotechnology field, there’s an additional wrinkle beyond the chemical formula of our products. Both the House and Senate version of the bill now include size, size distribution, shape and surface structure in the definition of a chemical’s “substance characteristic.” That means that over and above concerns about the chemical formula a nanotechnology company may be using, it may become suspect simply because of its nanoscale charactertics.
Am I worried? No. I know the people in this industry and I believe we have a track record that shows our care at policing ourselves. We’re not monsters. We have families, children and grandchildren, too. Make no mistake, we’re concerned about environmental health and safety in our industry. We have rules and programs in place. In addition, companies like mine have been working in special new voluntary reporting programs with the EPA. And, heaven knows, our whole industry has been educating scientists, governments, special interest groups and the general public about nanotechnology for a decade or more. So what’s keeping me up at night? Not worries about toxicity and nanotechnology. We can handle that. I’m worried about toxicity in the law-making process. One of the Senate authors of the Bill says, “America’s system for regulating industrial chemicals is broken… Parents are afraid because hundreds of untested chemicals are found in their children’s bodies.” Is that really where we want to start? Throwing open the door to panic — on both sides? I sat in on a nanotechnology industry conference call recently and the fear of a “witch hunt” was palpable. If parents are terrified, they’re in the same boat as honest, responsible companies that are making products that improve lives and have long been committed to health and environmental causes.
Do you think in this age of BP oil spills and late-night law-firm mesothelioma infomercials that businesses aren’t aware that preventing a problem is better than paying for it later? Let’s put down the torches and pitchforks and head to the conference table. We’ve got plenty of common ground. The current TSCA law hasn’t been updated in over 30 years. I agree it’s time. I’m also on board with the proposed risk-based approach to prioritizing chemicals for review. With the tens of thousands of products on the market, that’s a common sense approach to safety. I also support the proposal to keep regulation at the federal level.
A patchwork of state laws could turn confusion into disaster. In fact, we need to close up some loopholes that could mean a free-for-all. Now let’s talk about some issues I see. Current law requires that the EPA must show why it believes a chemical poses a threat and use the least burdensome alternative to restrict its use. The new law would require that all chemicals meet a safety determination that “provides reasonable certainty of no harm.” We need to agree to be reasonable when we define “reasonable.”. We don’t use paint as air freshener. We don’t eat fertilizer or pesticides. Still, we use (and benefit from) both of them. The proposed law also requires that aggregate and cumulative exposures be taken into account. It’s a laudable goal that fails to acknowledge that nanotechnology products — like all chemicals — are seldom stand-alone. The materials may be in multiple products from different manufacturers. Are we add together nano-thin coating on your cell phone made of proven safe polymers with the nanoparticles in the emergency wound dressing used to save your life in Afghanistan…with the nanocomposite golf club you swing? Again, let’s be reasonable about how we define “reasonable certainty of no harm.” And one more concern. The bill calls for a minimum data set be submitted by a company for each chemical they make.
An unbending, unreasonable “precautionary” approach grounded in the belief that all chemicals are guilty until proven innocent can have a crippling effect on innovation and, in turn, on our economy. At what point does innovation bogged down in reams of paperwork and month after month of regulatory mazes simply become too expensive? This provision also raises a number of questions about the protection of trade secrets, especially in countries where intellectual property rights are a sad joke. So what do we do? Got through another endless round of inside-the-Beltway shouting matches and snarky newspaper quips? Let’s not — and remember this instead. We’re in this together. All of us. Business and lawmakers. Activists and scientists. Healthy children and a healthy economic growth. Both sides are focused on the potential for great good — breakthrough innovation and a healthy world. Both sides must be aware of the specter of unintended consequences — to humans and to the American economy.
Let’s all come to the table searching for solutions, not simply victories. It’s a complicated balance — but isn’t that what good chemistry is all about? Scott E. Rickert is chief executive of Nanofilm, Ltd., located in Valley View, Ohio.