With Senator Frank Lautenberg's Death, What Happens to His Crucial Fight to Protect Us from Harmful Chemicals?

His most enduring legacy should have been the passage of the Safe Chemicals Act that has been squashed by pressure and lobbying by the chemical industry.

When Senator Frank Lautenberg (D-NJ) died Monday morning at age 89, the Senate lost its oldest member, (he was also the last WWII veteran), and proponents of toxic chemical safety, gun safety, and other protections lost a champion. His most enduring legacy should have been the passage of the Safe Chemicals Act he first introduced in 2010. But due to pressure and lobbying by the chemical industry, the original version of the bill never made it to the Senate floor for a vote despite Lautenberg’s committed work (in alliance with a coalition of environment groups) to get a vote on it every year from 2010 to 2012.

The American Chemistry Council opposed the bill, and via lobbyists, campaign contributions, and paid advertising for select candidates stalled forward momentum. According to the report Toxic Spendingissued by Common Cause:

Since 1990, the chemical industry has donated $117 million to candidates for federal office. From 2011 through September 2012, (author’s note: the critical window for passage of the Safe Chemicals Act) the chemical industry contributed $10 million to candidates for federal office. From 2005 through September 2012, the industry gave $39 million to candidates for federal office, and from 2005 through June 2012 it spent $333 million on lobbying at the federal level. Since December 2011, the chemical industry has also spent at least $2.8 million on political advertising in at least nineteen different campaigns.

A casualty of the breakdown in government, Lautenberg’s original bill aimed to revise the oldest, most outdated, and most ineffective environmental law on the books, the Toxic Substances Safety Act (TSCA)— which The New York Timesrecently called “a toothless law on toxic chemicals.”

With documented increases in cancer, asthma and spectrum disorders attributable (at least in part) to toxic chemical exposures, Lautenberg’s Safe Chemical Act met the need for vastly improved legislation to study and regulate toxic chemicals. It would have required “testing of all industrial chemicals… [to put)]…the burden on industry to prove that chemicals are safe in order stay on the market. Under current policy, the EPA can only call for safety testing after evidence surfaces demonstrating a chemical is dangerous.”

Though it passed in Senate committee in July 2012, the bill never reached the Senate floor. Two weeks ago, Lautenberg (who had been in declining health at least since early 2013) made his last attempt to get some form of legislation through. His new bi-partisan bill, introduced along with David Vitter (R-LA) was hailed as a compromise, and endorsed by the American Academy of Pediatrics. But the Environmental Working Group (EWG) critiqued the new bill as too much of a compromise, far from the bill that Lautenberg first championed. Vitter, the revised bill’s bi-partisan Republican sponsor, received over $300,000 in paid political advertising from the chemical industry in 2012 alone.

Some background: When the government enacted the Toxic Substances Control Act (TSCA) in 1976, the law aimed at guaranteeing the safety of the over 85,000 untested chemicals in wide use—but it fell far short. Over 35 years later, Lautenberg pointed out that fewer than two hundred chemicals had been studied, with only five chemicals banned. Why the delay? Industry pushback, lawsuits, revolving door regulators, and lobbying hampered the EPA in enforcing it.

Although developing safer chemical formulations may be better for business long term, in the short term, determining a toxic chemical’s human health effects can affect chemical companies’ quarterly bottom lines. If chemicals (or their waste or byproducts) produce undesirable health risks, then manufacturers have to spend millions reformulating them or finding ways to dispose of them. Instead of incurring that expense, it’s cheaper for companies to put scientists on the payroll, followed by an army of lobbyists to persuade Congress, along with public relations firms to sell the public.   Government regulators then use “turn and point” science when they point to industry-sponsored scientific claims of safety. The problem is that independent science and “turn and point” science (which David Murphy of Food Democracy Now! calls “cigarette science”) don’t produce the same results.

The Emerging Science of Chemical Harm

When industry chemists developed Bisphenol A (BPA), they completely overlooked what any bona fide biologist would immediately detect: that the chemical structure of BPA (and certain other synthetic chemicals) closely resembles the chemical structures of estrogen.

But Frederick vom Saal, Professor of Biological Sciences at the University of Missouri noticed it immediately. Vom Saal has studied hormones and chemicals of concern for over 20 years. He helped to describe the action of BPA and other substances as “endocrine disruptors” that even at miniscule doses interfere with bodily functioning. He found that, when absorbed into the body, the chemical molecules of BPA readily act on hormonal pathways to mimic estrogenic activity. Since excess estrogenic activity is implicated in cancer, this is undesirable.  “Using human breast cancer cells, we were studying estrogen chemicals for their potency. And BPA lit up like a Christmas tree. We said, ‘Holy mackerel. What is it that would ever make anybody think this is weak?’” asks vom Saal. Even at infinitesimal doses, harmful changes happen.

However, when government and industry undertake studies, they tend to use an older model of toxicology. Conventional toxicology investigates: At what dose will a substance kill you? But that research fails to account for the low dose responses that vom Saal and a growing body of scientists have identified. The independent academic science vom Saal and his colleagues undertake is less well funded than industry-funded studies. As a result, this new science uses smaller cohorts, such that it’s findings can be more readily dismissed. The solution is better funding for independent research into the effects of low dose chemical exposures. Under TSCA, no safety studies are required until the government can demonstrate significant evidence for harm.

Will the revamped bill, now called the Chemical Safety Improvement Act, shift the burden of proof as the original bill did? No, says EWG General Counsel, Thomas Cluderay who compared the new compromise bill with the original Safe Chemicals Act.

First, there is the important question of who will pay for independent assessment. “Missing are provisions allowing the EPA to collect fees from companies to help pay the cost of doing safety reviews on chemicals,” Cluderay notes. “In practice, this will ensure that EPA moves at a glacial pace to review the thousands of chemicals already on the market.” Erase the 85,000 backlog? Not much.

Would the EPA be empowered to regulate chemicals if needed?

In the absence of ample funding for independent research, the new bill would require the EPA to show ““substantial evidence” to justify any restrictions it imposes on chemicals that pose risks to public health and the environment.” Also the new bill would “allow chemical companies to take EPA to court over any safety standard it adopts.” Stalled by industry lawsuits? No change there. That’s been going on since ’76. Most significantly, the new bill fails to deliver on Lautenberg’s key goal— shifting the burden of proof to industry.

What about the use of corporate trade secrecy to bar the public’s right to know?

According to EWG, the new bill gives industry greater protections for “confidential business information” – trade secrets about any potentially harmful ingredients in products ranging from “fragrance” to fracking chemicals.

Then there’s the bad news for physicians treating people exposed to fracking or other highly hazardous chemicals.

“In particular, the bill makes it harder for medical personnel to learn the identity of secret chemicals when treating patients potentially exposed to those substances.” If that sounds familiar, it’s because this industry protective provision is in synch with ALEC-model bills like Pennsylvania’s reviled Act 13, which sought to prohibit physicians from disclosing chemicals to patients which were revealed by testing in their blood. (It was overturned as unconstitutional by the PA Supreme Court.)

So, what about newly introduced chemicals? And can the states continue to instate better regulations on the state level?

Yes and no. Yes, the companies are still allowed to market new chemicals prior to proving safety. And no, the individual states would no longer have their current rights to regulate chemicals if they wish to. http://www.ewg.org/enviroblog/2013/05/ten-ways-new-chemical-bill-marks-retreat

So a is it a better bill? The question is better for industry or better for public health?

Commenting on the lack of up to date research on toxic chemicals, Dan Fagin, the director of the Science, Health, and Environmental Reporting Program at New York University told me, “There are good scientific reasons why this is difficult, and there are also political reasons. Both Congress and the regulatory agencies are overly influenced by manufacturers.” Fagin is the author of Tom’s River: A Story of Science and Salvation(Bantam 2013), an in-depth exploration (and cautionary tale) about Tom’s River, New Jersey, where ingrained respect for job-creating industries and lack of knowledge about health impacts enabled hazardous chemical contamination that made the town a childhood cancer cluster with sixty-nine children affected by cancers.

“There are probably quite a number of (cancer) clusters out there that people haven’t noticed but are real clusters,” says Daniel Wartenberg, a Rutgers University epidemiologist who has studied cancer clusters for over three decades. “Even when they are noticed, many clusters aren’t studied because no one has any idea what the exposures are and also because it’s hard for people to get traction with the health department,” he tells Fagin in Tom’s River.

Sadly, while the earlier Safe Chemicals Act contained provisions for more research into toxic chemical “hot spots,” like the one in Tom’s River, the new bill omits that research. It also cuts the creation of a children’s environmental health research program.

Dan Fagin says. “It’s a terrible situation when we ask people to make decisions about whether or not a product is safe for them to use without the right information. It’s the role of government to step in and make judgments.”

That’s what the late Senator hoped to assure when he crusaded for a better law. It remains to be seen whether his passing will increase the prospects of the newly watered down bill. But whatever happens, Lautenberg’s legacy rests on what he fought for throughout his distinguished career.