Off the Books II: More Secret Chemicals

Seven years later, federal toxics law is still protecting the chemical industry’s dirty secrets

Monday, May 9, 2016

Rob Coleman, Analyst; Melanie Benesh, Legislative Attorney; David Andrews, Senior Scientist

Off the Books II: More Secret Chemicals

Seven years later, federal toxics law is still protecting the chemical industry’s dirty secrets

Code names for untested chemicals, secret production amounts reported by unnamed companies, discharges of undisclosed amounts of pollutants – these occurrences are not the fantastical inventions of some Dr. Seuss book. These are realities currently allowed under the federal Toxic Substances Control Act, commonly referred to as TSCA, which became law in 1976.

The law has enabled the chemical industry to obscure its operations under a shroud of secrecy that ever since has hampered efforts to protect public health. Even though today’s advanced analytical chemistry techniques make it easier than ever for manufacturers to unlock the secrets of their rivals’ products through reverse engineering, the companies claim that they need to keep details about their products secret, and the law still allows them to do so. 

This confidentially comes with a cost – it keeps the public in the dark about potential dangers and lets dangerous chemicals stay in the marketplace. By contrast, transparency often moves companies and regulators to take action to protect public health.  

For example, EWG’s work on perfluorooctanoic acid, or PFOA – a toxic chemical once widely used in non-stick Teflon products – clearly demonstrates the importance of transparency and access to health and safety information. Internal DuPont safety testing documents on PFOA were only made public in 2002 as the result of a lawsuit against the company. The disclosures to the public and the Environmental Protection Agency led directly to the phase-out of the chemical.

In 2009, EWG called attention to the information black hole in TSCA that allows chemical names and production information to be claimed as trade secrets – formally “confidential business information” or CBI – and never made public. Within weeks of EWG’s report, the EPA took modest steps to control the most blatant overuse of the confidentiality stamp. Unfortunately, however, the EPA did not go far enough, and seven years later, little has changed. The lack of transparency remains a major roadblock to protecting public health from dangerous chemicals.

Updating its 2009 analysis, EWG has found that positive EPA actions have disallowed some CBI claims, but much more needs to be done. Today nearly two-thirds out of the 22,450 new chemicals manufactured since July 1979 are shrouded under cloak of secrecy. In the past six months alone, companies’ CBI claims have masked even the names of half the chemicals they reported to EPA as raising substantial safety concerns.

Congress is poised to legislate changes to TSCA this year for the first time in 40 years. Some of these changes will likely update the regulations that have permitted excessive and often unnecessary CBI claims. How meaningful these revisions will be, however, is largely dependent on the outcome of ongoing Congressional conference committee negotiations and the final language they adopt.

In the background, the chemical industry has been scrambling to protect its CBI claims. For the companies, preserving their power to use trade secret designations to cloak their products is a top priority, claiming that greater disclosure will hinder innovation. But the truth is that much greater transparency is possible without slowing research and development of new chemicals.