On June 22, 2016, President Obama signed the Lautenberg Chemical Safety Act into law. The Act is the first significant change to the 1976 Toxic Substances Control Act in 40 years and amends the Environmental Protection Agency’s (EPA) methods for reviewing chemical substances before they are marketed and allowed to be used in consumer products.
The Act has several new key features:
- EPA’s safety reviews for all chemicals currently in commerce will depend solely on risks to human health and the environment (including those “grandfathered” under the current federal law). EPA’s safety reviews will also be performed for new chemicals that are proposed for entry into the market prior to manufacture. Additionally, “high priority” chemicals will be reviewed first.
- When evaluating chemical substances, EPA must consider the “best” science to determine impacts to human health and the environment.
- New restrictions on industries that conduct animal testing and a requirement for EPA to track “scientifically reliable alternatives” to animal testing.
- A health-based safety standard replaces the TSCA cost-benefit safety standard (also known as the “least burdensome” requirement).
- Express language that the Act does not preclude private rights of action for personal injury, wrongful death, property damage, or other injury based on negligence, strict liability, products liability, failure to warn, or any other legal theory of liability. Nor can EPA’s safety reviews be used as “dispositive” evidence in such a case.
- Authorization for EPA to promulgate rules to manage the risk in cases where “unreasonable risk” is determined for a chemical substance.
- A mechanism to ensure industry fees paid to the EPA for its safety reviews are used for the specific purpose for which they were given.
- A preemption of state law until EPA makes a final decision on a chemical but grandfathering certain existing state law decisions and allowing states certain “emergency” decisions.
- New limitations on and continued protection of confidential business information.
- 15 deadlines for EPA action, including a three-year limit for the completion of chemical risk assessments and a 90-day window after risk evaluations are completed for the EPA to promulgate risk management rules. Once EPA’s actions are completed, it is expected that EPA’s review process will be more efficient and transparent under the Act.
- The new imposition of strict liability on chemical importers.
- A new requirement to share confidential business information with states, units of local government, health providers or emergency responders dealing with potential injury involving or exposure to a chemical.
This brief summary of the Lautenberg Chemical Safety Act touches only on some areas of reform. For more discussion, see the Toxic Substances Control Act Reform: Key Questions and Answers supplement.