73
better protect the public. These favorable scientific developments hold the promise
of better protection of the public and workforce in the future, but I do not want to be
overly optimistic in the face of substantial industry pressures.
8 Going Forward to Better Protect the Public
The U.S. and likely most countries have a huge backlog of poorly understood
chemical products in commerce. Fifty years ago the U.S. President’s Council on
Environmental Quality called attention to this problem and the need for better laws:
We should no longer be limited to repairing the damage after it has been done [Torts]; nor
should we continue to allow the entire population or the entire environment to be used as a
laboratory [postmarket] (US Council on Environmental Quality 1971)
Because the 1976 TSCA permitted the creation of 84,000 substances whose
toxicity is poorly understood, this is about where we find ourselves in 2019.
The U.S. Congress in 2016 finally acknowledged this issue, passing the Frank
R. Lautenberg Chemical Safety for the 21st Century Act, which seeks to address
some of these concerns. For new chemicals the EPA “must make an affirmative finding on the safety of a new chemical or significant new use of an existing chemical
before it is allowed into the marketplace” (EPA 2016). For both new and existing
chemicals, it seeks to protect susceptible people: children, highly exposed workers,
pregnant women, and the elderly. Finally, it has “rigorous” postmarket review deadlines so that products do not become bogged down because of company recalcitrance and endless scientific and legal disputes (Cranor 2017a). These are not the
only provisions, but they might represent important improvements for protecting
the public’s health if they are well administered in the spirit of the law.
However, there is the rub. Will the evidentiary bar for new substances be set too
low, permitting products into commerce with too little data and poor understanding
of their toxicity? This would recapitulate the 1976 TSCA. The Trump administrations’ approval in 2017 of 600 new substances in a few months (an unheard of rate)
creates the impression that public health protections were not a high value for this
administration and is quite different from the review of pharmaceuticals and
pesticides.
Will the evidentiary bar for existing substances be too high? EPA’s refusal to ban
chlorpyrifos, a pesticide with an overwhelming body of data about its toxicity, and
against the protests of EPA scientists also does not bode well for protecting the
general public and susceptible subpopulations (Cranor 2017b).
These examples and the previous discussion show that public health protections
in premarket and postmarket assessments depend upon how they are administered
and the science utilized by agencies.
Toxic contamination is unavoidable; there is no place for the public to hide.
Excellent premarket testing under The Lautenberg Act could primordially prevent
many risks of diseases that frustrate a lifetime arc of good health. However, this
Using Science and Law to Promote Humans’ Biological Integrity
better protect the public. These favorable scientific developments hold the promise
of better protection of the public and workforce in the future, but I do not want to be
overly optimistic in the face of substantial industry pressures.
8 Going Forward to Better Protect the Public
The U.S. and likely most countries have a huge backlog of poorly understood
chemical products in commerce. Fifty years ago the U.S. President’s Council on
Environmental Quality called attention to this problem and the need for better laws:
We should no longer be limited to repairing the damage after it has been done [Torts]; nor
should we continue to allow the entire population or the entire environment to be used as a
laboratory [postmarket] (US Council on Environmental Quality 1971)
Because the 1976 TSCA permitted the creation of 84,000 substances whose
toxicity is poorly understood, this is about where we find ourselves in 2019.
The U.S. Congress in 2016 finally acknowledged this issue, passing the Frank
R. Lautenberg Chemical Safety for the 21st Century Act, which seeks to address
some of these concerns. For new chemicals the EPA “must make an affirmative finding on the safety of a new chemical or significant new use of an existing chemical
before it is allowed into the marketplace” (EPA 2016). For both new and existing
chemicals, it seeks to protect susceptible people: children, highly exposed workers,
pregnant women, and the elderly. Finally, it has “rigorous” postmarket review deadlines so that products do not become bogged down because of company recalcitrance and endless scientific and legal disputes (Cranor 2017a). These are not the
only provisions, but they might represent important improvements for protecting
the public’s health if they are well administered in the spirit of the law.
However, there is the rub. Will the evidentiary bar for new substances be set too
low, permitting products into commerce with too little data and poor understanding
of their toxicity? This would recapitulate the 1976 TSCA. The Trump administrations’ approval in 2017 of 600 new substances in a few months (an unheard of rate)
creates the impression that public health protections were not a high value for this
administration and is quite different from the review of pharmaceuticals and
pesticides.
Will the evidentiary bar for existing substances be too high? EPA’s refusal to ban
chlorpyrifos, a pesticide with an overwhelming body of data about its toxicity, and
against the protests of EPA scientists also does not bode well for protecting the
general public and susceptible subpopulations (Cranor 2017b).
These examples and the previous discussion show that public health protections
in premarket and postmarket assessments depend upon how they are administered
and the science utilized by agencies.
Toxic contamination is unavoidable; there is no place for the public to hide.
Excellent premarket testing under The Lautenberg Act could primordially prevent
many risks of diseases that frustrate a lifetime arc of good health. However, this
Using Science and Law to Promote Humans’ Biological Integrity