Politico.com, September 18, 2008

CHEMICAL INDUSTRY TO FIGHT NEW PROPOSAL

[Rachel's introduction: "The chemical industry lobby is gearing up to fend off a broad legislative overhaul that marks a significant shift in the way that chemicals are regulated in America."]

By Samuel Loewenberg

The chemical industry lobby is gearing up to fend off a broad legislative overhaul that marks a significant shift in the way that chemicals are regulated in America.

The push for chemical reform comes after this summer's revamping of the Consumer Product Safety Commission. Now, health advocates hope that success, which introduced the so-called precautionary principle into U.S. chemical regulation, will pave the way for an even more far- reaching overhaul next year.

The precautionary approach has faced fierce opposition from the petrochemical industry. Until now, applying it in U.S. chemical regulation had seemed out of reach.

"The environment seems to have changed in our favor," said Rep. Hilda L. Solis (D-Calif.), vice chairman of the House Environment and Hazardous Materials Subcommittee. "Consumers are expecting the federal government to do something. They don't want to hear about it at the last minute, after their children have been exposed."

The precautionary principle shifts the burden from regulators having to prove a substance is dangerous to manufacturers having to prove it is safe. It's a fundamental part of the new legislation, the proposed Kid Safe Chemical Act, and is already its most divisive aspect.

On Tuesday, the Senate Environment and Public Works Committee held an oversight hearing that will help set the stage for the bill. And its supporters are hoping to push it through next year and are preparing the groundwork with hearings, staff briefings, and lobbying visits by religious organizations, medical professionals and others.

A crucial part of their strategy is to gain the support of the retail industry, which also played an important, if at times reluctant, role in the passage of the consumer protection overhaul earlier this summer.

The Kid Safe Chemical Act was first introduced in the Senate in 2005 but gained little traction. After a series of high-profile recalls of toys and other children's products over the past two years, it became clear to both industry and consumer groups that the Consumer Product Safety Commission's enforcement was in need of an overhaul.

A last-minute protest came from the petrochemical industry, particularly ExxonMobil, which sought to strike down a provision to ban some types of phthalates that advocates say could damage children's reproductive systems. The ban, pushed by Democratic Sen. Dianne Feinstein, whose home state of California had already moved to outlaw the chemicals, passed despite fierce opposition from chemical manufacturers.

The passage of the phthalates ban was a "seismic shift" because it brought the precautionary principle into play, said Stephanie Lester, vice president for international trade for the Retail Industry Leaders Association, which represents Wal-Mart, Target and other large chains. The group has not taken a position on the Kid Safe Chemical Act.

The chemical industry opposes the precautionary principle on the grounds that it could unfairly ban chemicals and wants regulators to focus instead on the riskiest substances.

"Better safe than sorry is one thing, but then there is throwing the baby out with the bath water, too," said Marty Durbin of the American Chemistry Council, the trade group for the chemical manufacturers.

Durbin was skeptical that the children's chemical reform bill would pass in its current form, even with the success of the consumer and health groups on phthalates. The ban, he said, does not mean that "the walls have come tumbling down and now Congress is going to pass the precautionary principle."

But that is exactly what health advocacy groups are hoping for. "That's the endgame for environmental and health groups that were working on the phthalate ban," said Janet Nudelman, chief lobbyist for the Breast Cancer Fund, a major force in pushing the ban through. The ban "was a referendum on chemical policy reform," she said.

The health groups are planning to use the same techniques that paid off for them with the consumer protection agency overhaul. The Breast Cancer Fund was able to mobilize more than 100,000 mothers to write into the conferees asking for the ban on phthalates use in kids' toys, because of risks the chemical plastic softener could leach into children's bloodstream. One of the biggest questions with the new bill is how retailers will respond. Especially for large stores, the pressing issue is that they be given sufficient time to introduce changes into their supply chain, said Lester of the retail leaders group, and not be forced to immediately pull items off store shelves.

"We need to be clear on the scope of products it applies to, clear on what our responsibility is," she said.

The new bill seeks to revamp the current law, the Toxic Substances Control Act, widely acknowledged to be out of date and too weak. The bill would require that chemicals used in tens of thousands of products -- from the plastic in baby bottles to the paint on rocking chairs -- are proved safe before they are allowed to be sold.

Currently, the burden is on regulators to show that a product is dangerous before they can force its removal from the shelves. Of the 80,000 chemicals used in household products, the Environmental Protection Agency has required toxicity testing of only 200, according to the bill's sponsors.

"We already have strong regulations for pesticides and pharmaceuticals -- it's common sense that we do the same for chemicals that end up in household items such as bottles and toys," said the bill's sponsor, Sen. Frank R. Lautenberg (D-N.J.).

The current legislation is modeled on a sweeping overhaul recently passed by the European Union after a long campaign against it by the U.S. chemical industry and the Bush administration.

The State Department mobilized U.S. diplomatic missions around the world in opposition. In a cable to U.S. diplomats, then-Secretary of State Colin Powell argued that the European legislation "would be significantly more burdensome to industry" than current approaches.

Details of that effort can be found on the website of the investigations division of the House Government Reform Committee, chaired by Rep. Henry A. Waxman (D-Calif.), one of the co-authors of the new legislation.

The new legislation is likely to be bolstered by the actions of the states, a few of which -- including Arkansas, California, New York, Maine and Washington -- are putting together their own precautionary laws.

Myriad state environmental groups have signed on to the new federal legislation, including ones from Republican strongholds such as Alaska, Kentucky and Texas.

Other supporters include the American Nurses Association, the National Autism Association and the Service Employees International Union.

The National Council of Churches, representing 45 million people in 100,000 churches from 35 mainline denominations, is also mobilizing its membership. It was a strategy that the group also used on the consumer protection reform, said Chloe Schwabe, the council's assistant director of environmental health.

"We are educating and engaging congregations to take action to improve our system to regulate chemicals and protect God's creation," Schwabe said. The precautionary approach is especially important, she said, because it "can protect people first, before they or their children are exposed to toxic chemicals."

Schwabe said she is hopeful that the legislation will surpass partisan boundaries, especially with the approaching Christmas shopping season.

"If these legislators are people of faith, they should be guided by their faith in making that decision to protect children and the most vulnerable among us," she said. "It shouldn't matter if you are a Democrat or a Republican."