Regulation of Chemical Risks: Lessons for Reform of the Toxic Substances Control Act from Canada and the European Union

Abstract

The United States Congress is considering reform of the Toxic Substances Control Act (TSCA) of 1976. This Article compares recent reforms in Europe and Canada in order to draw lessons for TSCA reform. In 2006, the European Union enacted the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation while Canada used existing authority under the Canadian Environmental Protection Act (CEPA) of 1999 to initiate the 2006 Chemicals Management Plan (CMP). Focusing on the tens of thousands of industrial chemicals now in use in the US, we offer several suggestions for TSCA reform based on the European and Canadian experiences. Congress should consider applying the Canadian approach to prioritization, where high-priority chemicals are identified for assessment and regulation based on limited data and modeling/screening exercises. To facilitate more expedient safety determinations, TSCA reform legislation should separate risk assessment from risk management decisions. Under either approach, improved chemicals governance will require significant new public and private investments in safety information and deliberations. Finally, Congress should consider applying European-style chemical registration to high-priority substances, placing the burden of generating data and proving the safety of specific uses on industry. In summary, an industry obligation to register high-priority chemicals and defend the safety of specific uses would bring new life to TSCA, enhance public health and environmental protection, and buttress public confidence in federal regulation of industrial chemicals.

Keywords: chemicals, risk, hazard, risk assessment, risk management, environmental law, comparative law, TSCA, Toxic Substances Control Act, Canadian Environmental Protection Act, European Union