As the legislative opportunities for reforming the federal Toxic Substances Control Act (TSCA) flounder, numerous states are enacting or entertaining laws which regulate, and in some cases completely prohibit, certain chemical substances. Such statutes range from those which completely prohibit a specified chemical substance and products that contain that chemical, to laws enabling a state agency to identify and list "priority" chemicals for which makers of products containing the listed substances must file certain reports and make disclosures to customers. The legislation, on its face, often seems innocuous - what state legislator could say "no" to a vote in favor of a bill enabling state officials to identify and post a list of "chemicals of concern"? The potential consequences of such laws have yet to be determined, and the difficulty of keeping up with 50 states' requirements can be daunting on the entities perhaps most affected by the bills: makers of commercial and consumer use products that might contain a listed chemical.
Impetus for State Action
During the course of the past decade, consumers have developed a greater awareness of the presence of certain substances in commercial products. In the United States, it is arguable that awareness and concerns about chemicals might have its basis in the efforts of multiple non-governmental organizations (NGOs) to create and enhance such awareness.1 Plaintiffs law firms have an interest in fomenting such concerns.2 The federal government and some national governmental authorities abroad also have commitments to raising consumer awareness through efforts to enhance "transparency" reflecting the "right to know" movement.3 The rise in awareness and concerns about chemicals in products has also been fueled by increased access to, and reliance upon, information concerning chemical substances conveyed via the internet. Thus, individual consumers are now able to communicate with one another directly to retransmit information gained from a variety of the forgoing sources purporting it to be reliable and sound. The extent to which public awareness about chemicals of concern can influence consumer behavior has been observed and noted in the literature for nearly a decade4 and is being actively observed and monitored today.5