As state legislatures returned last week, toxic chemical reform was a major focal point. Legislators in thirty states and Washington, DC introduced legislation that is focused on protecting people from harmful chemicals. The bills that were introduced focus primarily on five objectives:
- Ban BPA in certain products,
- Ban hazardous flame retardants in consumer products,
- Ban cadmium in children’s products,
- Ensure safety of chemicals in children’s products, and
- Call for the federal government to reform the Toxic Substances Control Act (TSCA).
States that have introduced or plan to introduce legislation that would ban BPA are: Connecticut, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Tennessee, and Texas. There are also plans for legislation in Washington, DC.
Legislation banning hazardous flame retardants has been announced in: Alaska, Massachusetts, New York, and Washington, DC.
Legislators are advocating for cadmium bans in Florida, Kentucky, Maine, Maryland, Michigan, Mississippi, New Jersey, and New York.
In Florida, Kentucky, Maine, Maryland, Michigan, Mississippi, New Jersey, and New York, legislation on chemicals in children’s products has been proposed.
Alabama, California, Connecticut, Delaware, Georgia, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Montana, New York, Oregon, South Dakota, Texas, Washington, Wisconsin, and Vermont are states where legislators seek comprehensive state laws to regulate chemicals or federal TSCA reform.
Federal TSCA reform legislation was introduced in 2010 in both the House (H.R. 5820) and the Senate (S. 3209) , and hearings were held on the House bill, but the legislation never moved forward. TSCA reform legislation is likely to be introduced in the 112th Congress as well, but it is not yet clear whether TSCA reform will be a priority in the overall legislative agenda.
In the meantime, state-level legislation may be able to fill the void. Well-drafted state legislation can help to ensure that products sold in a state are safe for consumers and that manufacturing and chemical disposal are not leading to unnecessary environmental degradation. Moreover, in the words of Justice Brandeis, states can be “laboratories” that offer clues as to what might work and what might be problematic in future federal legislation. States can also be trendsetters. If one state bans cadmium or BPA, maybe another will too.
Despite these potential advantages, state-by-state controls on toxic substances have at least two potential pitfalls. First, the resulting patchwork of state laws can be costly or unmanageable for businesses. Most manufacturers and retailers of consumer products know their products will not just be sold in California or Oregon; the products may also make their way in commerce into Illinois, New York, and Florida. As a result, companies are trying to keep up with potential legislation in all 50 states and to design products that comply with every state’s laws. Second, businesses, states, Congress, and the courts face complicated pre-emption questions whenever state and federal laws overlap. If or when Congress imposes new federal controls on toxic substances, it could take quite some time before the question is settled of which state laws are pre-empted and which remain in force.
For these reasons, many companies will be watching this year to see not only what legislators in their home state are doing, but also what legislators in other states are doing, and whether TSCA reform is progressing on the Hill. State or federal legislation, and the interaction between the two, could significantly impact a company’s business.