Toxic chemical legislation is REACHing an all time low

By Stephen O’Brien 

REACh Directive – TTIP’ing over European Standards

Cooperating for profit at the expenses of our health

The Transatlantic Trade and Investment Partnership (TTIP) is a free trade agreement currently being negotiated between the United States and Europe. The objective of this free trade agreement is to remove unnecessary and burdensome barriers to trade, and if signed, will create the biggest trading block in the world and inevitably become the foundation for other future free trade agreements globally. Europe expects a growth of approximately 0.05% in gross domestic profit (GDP) per year. [i]

Multiple industries are going to be impacted if this free trade agreement is signed, due to a variety of reasons, although NGOs and CSOs have been voicing their concern specifically on the topic of the inclusion of “Investor State Dispute Settlement” (ISDS) and Regulatory cooperation.[ii] The European Parliament can only vote for or against the agreement once negotiations are concluded. The unelected European commission is the representative body in charge of negotiations.[iii]

The TTIP negotiations threaten to reduce European chemical standards and increase exposure to hazardous chemicals. [iv] Europe’s chemical regulation, the REACh Directive (Registration, Evaluation, and Authorisation of Chemicals) is the largest barrier to trade between the two trading blocs.[v] Harmonising regulatory standards across the Atlantic derives from the inclusion of regulatory cooperation in these negotiations. Chemical standards and pesticide regulation are very divergent when comparing these two trading blocs, which indicates that these industries stand to gain the most from these negotiations. [vi]

Tariffs between the EU and US are relatively low, only 5% of products have tariffs between the EU and the US, so the main benefit of TTIP will come from harmonising regulatory standards across the Atlantic. The inclusion of regulatory cooperation is to align, existing and future rules and procedures aiming to ‘reduce unnecessarily burdensome, duplicative or divergent regulatory requirements affecting trade or investment’ stated a textual proposal released by the European Union, during February 2015. [vii] Harmonisation of standards between the US and the EU will see common standards adapted between the two trading blocks, which will be carried out by the Regulatory Cooperation Body. It is envisaged that this body would be composed of civil servants from both sides, who will dictate the legislative acts between the two continents in a bid to make them compatible. They can do this through proposing initiatives that will increase harmonisation or reduce the impacts on, and costs for, businesses. [viii]

European and US standards in the chemical industry are quite divergent, as can be seen by each trading bloc’s stance on asbestos, which we will discuss in due course. In Europe, the consumer has safe guards which have been set up, such as the Precautionary Principle and the REACh. This directive is the most significant piece of legislation around the regulation of toxic substances, which was enacted to monitor and analyse how chemicals interact with each other and individually, while also seeing how these impact humans and the environment. It requires companies that want to market a chemical in the EU to prove that it is safe (or to use alternatives).This is the core principle of the precautionary principle. [ix]

Before REACh’s implementation, 99% of the most commonly used chemicals had little or no publicly available safety and environmental information, according to environmental groups and EU officials, who cite concerns of increased incidences of cancer, allergies, birth defects, and reduced fertility in recent decades.[x] The introduction of these regulations created the first mandate to carry out tests on a range of chemicals found in common consumer goods, from children’s pyjamas to computers, televisions to household cleaners.

The EU estimated the costs to industry would be €3.6 billion over a decade. The chemical industry initially indicated that its cost would be more than double that, as the debate heated, the industry cost estimate multiplied. According to European Commission estimates, REACh was expected to prevent more than 4,300 occupational cancer cases per year, and would bring savings in health benefits of €50 billion over a 30-year period. This European directive puts the burden of proof on the company, who has to prove that the substances in their products are safe. [xi]

Oppositely, and unfortunately, the default approach under US law is that all chemicals are safe, unless proven otherwise. The United States has the Toxic Substances and Control Act (TSCA) which was established in 1976. TSCA regulations gave power to the Environmental Protection Agency (EPA), which put the burden of proof on the regulator i.e, a substance can be sold on the market until such a time that it proves to be dangerous.[xii] The EU bans thousands of chemicals that are harmful to the environment or health in cleaning products, cosmetics, paints, clothes, and electrical appliances. Conversely, the US is much more lax, with only a handful of chemicals banned.[xiii] Therefore, by implementing TTIP and adapting to US standards, Europe will be compromising its chemical safety guidelines that have been the foundation of the union for years.

The precautionary principle in Europe places trust in the idea that in the absence of evidence, it is better to not take the chance hence ‘precautionary principle’. This inevitably means that unless the manufacturer can provide data showing their product is safe, they are unable to distribute it on the market. [xiv] A recent Greenpeace leak indicated that the US negotiators wanted to see the precautionary principle omitted from TTIP. Of the thirteen TTIP chapters leaked by Greenpeace, none mention the precautionary principle, which is enshrined in the EU Treaty on the Functioning of EU.[xv]

Former EPA administrator, Lisa Jackson stated, at a conference in San Francisco in 2009, “Right now, we are failing to get this job done … not only has TSCA fallen behind the industry it’s supposed to regulate — it’s been proven an inadequate tool for providing the protection against chemical risks that the public rightfully expects.”[xvi] The role of the TSCA and its enforcement by the EPA has been called by some critics as inefficient and burdensome for the regulator. [xvii] The TSCA allowed all 62,000 chemicals that were in commercial use before 1976, the year it became law, to stay on the market unless the EPA later found they posed an “unreasonable risk.” The EPA is in fact regulating five chemicals: PCBs, halogenated chlorofluoroalkanes, dioxin, asbestos and hexavalent chromium. These chemicals are considered part of the ‘existing’ list as they were inventoried when TSCA was enacted. [xviii]

All chemicals which came after 1976 are allowed enter the market unless the EPA can establish “unreasonable risk.” The agency only has 90 days to make a decision, who rarely have all the toxicity data it needs. Therefore all substances that the industry want to sell are allowed go on to the market. [xix]

A ‘second lost’ court case in 1991 saw a judge remove the agency’s ban on asbestos (fibrous minerals that are known to have caused the deadly lung cancer mesothelioma). This was partially due to the fact that the agency did not fully considered the cost of banning it.[xx] As little as a single days exposure to this chemical has been associated with deadly cancer which may not manifest itself for decades. The EPA haven’t successfully used its TSCA powers to ban substances since then. This is the system TTIP will bring to Europe. [xxi]

Nonetheless, asbestos is estimated to kill approximately 12,000 – 15,000 people each year in the United States.[xxii] In 2005 Europe banned asbestos and a clean-up operation has been taking place across European countries for decades, though many MEPs believe this has not been sufficient. Former Irish MEP Emer Costello, said this is a “huge issue” and that many people “would not be aware that there are so many public buildings that have asbestos,” who also added that approximately 3,000 people may be affected by asbestos related illnesses in Ireland. [xxiii]

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The EPA in the USA spent ten years on its asbestos rulemaking, building an administrative record of more than 45,000 pages, demonstrating that asbestos posed an unreasonable risk to human health and the environment. [xxiv] The divergence between the two trading blocs in regards to chemicals is “impossible” to breach according to Forbrugerrådet Tænk a Danish consumer rights organisation who have expressed fear that European negotiators will be tempted to compromise the EU’s more stringent regulations. [xxv]

As of January 2016, the EU banned 1,378 chemical substances that are used in cosmetics, whereas the US has only prohibited 11 substances.

The US chemical industry have maintained their stance, that Europe’s REACh directive and pesticide regulation on toxic chemicals, are the largest trade barrier for US manufacturers.[xxvi]  In 2014, the US government stated their position on these EU laws, “[they] are discriminatory, lack a legitimate rationale, and pose unnecessary obstacles to trade”. [xxvii] Baskut Tuncak, of the Centre for International Environmental Law (Ciel) stated “The latest TTIP proposals would allow ‘regulatory cooperation’ to affect the implementation of EU chemical laws.” Tuncak later added “This is a serious threat to EU chemical laws and policies as the US continues to lobby against more protective EU standards.” [xxviii]

A report released by Greenpeace in 2016 indicated that TTIP’s negotiations have already had a chilling effect on Europe’s efforts to regulate a new category of chemicals, endocrine disrupting chemicals (EDCs), which can cause cancer and reproductive disease, and are particularly harmful to children. The report stated, “The EU’s regulation of EDCs has been repeatedly delayed, despite clear evidence of harm. Several EU countries have criticised the Commission for its lack of action. In December 2015, the European Court of Justice ruled that the Commission had in fact “breached EU law” by failing to act.”

In December 2015, the European Court of Justice released its verdict that the European Commission had broken EU law. The European Commission failed to oblige the EU’s biocides regulation to adopting scientific criteria for the identification of these chemicals by 13th December 2013. A draft proposal was blocked by the Commission’s former Secretary-General, Catherine Day, who wanted the executive to make an impact analysis first, in July 2013. The court ruled that they had found no provision of the regulation which requires such an impact analysis. [xxix] The case was taken by Sweden on behalf of the Nordic states which was centred on EDCs.[xxx] Research on EDCs, such as: BPA and phthalates suggests that these synthetic chemicals like these are in a variety of everyday products, such as: plastics and fragrances. These synthetic chemicals can mimic hormones and interfere with, or disrupt our endocrine system. [xxxi]

Exposure to EDCs is estimated to cost the EU €157 billion per year in actual health care expenses and lost earning potential. [xxxii] The Health and Environment Alliance (HEAL) stated that the ruling shows the Commission “must respect the law regardless of industry lobbying: an impact assessment was not a legitimate way to avoid the deadline. We know industry lobbying on EDCs aimed to get an ‘impact assessment’, and this assessment is the reason the Commission gave for ignoring the law.”[xxxiii]

ttip-lobby-regcop

European Commission’s press service stated “The European Commission was and is working on the definition of the criteria of Endocrine Disruptors for regulatory purposes. Endocrine Disruptors have not been and will not be the subject of TTIP negotiations. Thus, TTIP has not – and will not – interfere with the EU regulatory process that will follow its course in accordance with our own regulatory framework: the EU will reach its decision autonomously.”

During the final months of 2005, REACh’s testing requirements were cut back by about two thirds. Originally 30,000 chemicals were to undergo rigorous testing. By November, only 12,000 chemicals were covered. This meant that thousands of potentially dangerous chemical have slipped through the testing procedures, according to environmental groups like World Wildlife Fund and the European Environmental Bureau. [xxxiv] A statement released by Greenpeace stated “The leaked documents also show the influence of industry lobbies on trade negotiators. The leak mentions several times that negotiators regularly consult with industry agents and are prepared to represent their positions.” [xxxv] In Brussels alone, there are 30,000 corporate lobbyists, who are responsible for influencing three quarters of legislation in the EU. One third of all US companies and industry associations are not even on the EU register, although they have lobbied for TTIP (37 out of 91). [xxxvi] These figures indicate transparency is not a priority for negotiators. TTIP acts as a platform for the corporate agenda to promote its profit orientated objective on a global scale.

TTIP’s negotiations will have a massive impact on multiple industries and society as a whole. Speculation has been rife as to TTIP’s contribution to the European Commission’s failure to enact criteria for testing on endocrine disruptor. One can only speculate as to what the final text will say.   The recent leaks published by Greenpeace and the sheer size of the lobbying industry are unlikely to suppress fears of TTIP’s proponents. Considering the lack of transparency behind this deal the average citizen will remain bewildered until it is too late.

  • Bibliography – 

[i]Contributor. (2016). The EU-US Transatlantic Trade and Investment Partnership. Available: http://ec.europa.eu/ireland/key-eu-policy-areas/transatlantic-trade-investment-partnership/index_en.htm. Last accessed 10/05/16.

[ii] Dr Joshua Curtis and Dr John Reynolds. (2015). TTIP, ISDS and the Implications for Irish Public Health Policy. Available: http://www.cancer.ie/sites/default/files/content-attachments/final_version_of_report_on_ttip_and_irish_public_health_policy.pdf. Last accessed 10/05/16.

[iii] Martin Schulz. (2015). The role of Parliaments in negotiations on international Treaties. Available: http://www.europarl.europa.eu/the-president/en/press/press_release_speeches/speeches/speeches-2015/speeches-2015-april/pdf/the-role-of-parliaments-in-negotiations-on-international-treaties. Last accessed 10/05/16.

[iv] Contributor. (2014). “T” for Toxic?  Seven things everyone should know about the EUUS trade negotiations (aka TTIP or TAFTA) and chemical regulation. Available: http://ciel.org/Publications/TTIP_FactSheet_EU_Feb2014.pdf. Last accessed 10/05/16.

[v] Contributor. (2014). Toxic partnership A critique of the ACC-CEFIC proposal for trans-Atlantic cooperation on chemicals. Available: http://www.clientearth.org/reports/health-and-environment/140310-acc-cefic-critique-ciel-clientearth.pdf. Last accessed 10/05/16.

[vi] Ferdi De Ville. (2016). REGULATORY COOPERATION IN TTIP A risk for democratic policy making?. Available: http://www.policy-network.net/uploads/media/154/9340.pdf. Last accessed 10/05/16.

[vii] PAUL DE CLERCK, LORA VERHEECKE, MAX BANK. (2015). How TTIP could create a red tape labyrinth. Available: https://euobserver.com/opinion/128350. Last accessed 10/05/16.

[viii] Friends of the Earth Europe . (2015). TTIP’s ‘Regulatory Cooperation’ would force down standards in US and EU. Available: http://www.theecologist.org/News/news_analysis/2941169/ttips_regulatory_cooperation_would_force_down_standards_in_us_and_eu.html. Last accessed 10/05/16.

[ix] Samuel S. Epstein, M.D.. (2004). REACH: AN UNPRECEDENTED EUROPEAN INITIATIVE FOR REGULATING INDUSTRIAL CHEMICALS . Available: http://rightlivelihood.org/fileadmin/Files/PDF/Literature_Recipients/Epstein/Epstein_-_Regulating_industrial_chemicals.pdf. Last accessed 10/05/16.

[x] Samuel Loewenberg. (2006). Watering down of EU regulations on chemicals proves power of lobbyists. Available: http://www.irishtimes.com/news/watering-down-of-eu-regulations-on-chemicals-proves-power-of-lobbyists-1.1002128. Last accessed 10/05/16.

[xi] Frédéric Simon. (2012). REACH chemical law ‘worth the money in the end’, says BASF. Available: http://www.euractiv.com/section/sustainable-dev/news/reach-chemical-law-worth-the-money-in-the-end-says-basf/. Last accessed 10/05/16.

[xii] Contributor . (N.a). Summary of the Toxic Substances Control Act.Available: https://www.epa.gov/laws-regulations/summary-toxic-substances-control-act. Last accessed 10/05/16

[xiii] Elizabeth Grossman . (2014). BANNED IN EUROPE, SAFE IN THE US.Available: http://ensia.com/features/banned-in-europe-safe-in-the-u-s/. Last accessed 10/05/16.

[xiv] Contributor . (N.a). The precautionary principle in the European environmental, health and food safety policy. Available: http://ecologic.eu/1126. Last accessed 10/05/16.

[xv] Greenpeace Press Release. (2016). Leaked TTIP documents confirm major risks for climate, environment and consumer safety. Available: http://www.greenpeace.org/international/en/press/releases/2016/Leaked-TTIP-documents-confirm-major-risks-for-climate-environment-and-consumer-safety/. Last accessed 10/05/16.

[xvi] Bill Chameides. (2011). In Search of the Toxic Five. Available: http://blogs.nicholas.duke.edu/thegreengrok/insearchoftsca5/. Last accessed 10/05/16.

[xvii] Noah M. Sachs. (2009). Jumping the Pond: Transnational Law and the Future of Chemical Regulation . Available: http://regulation.upf.edu/dublin-10-papers/4E1.pdf. Last accessed 10/05/16.

[xviii] Contributor . (2005). Options Exist to Improve EPA’s Ability to Assess Health Risks and Manage Its Chemical Review Program. Available: http://www.gao.gov/assets/250/246667.pdf. Last accessed 10/05/16.

[xix] Scholars Emily Hammond, Thomas McGarity, Sidney Shapiro, James Goodwin and Wendy Wagner. (2013). TSCA Reform Preserving Tort and Regulatory Approaches.  Available: http://www.progressivereform.org/articles/tsca_issuealert_1309.pdf.                       Last accessed 10/05/16.

[xx] Contributor . (2004). ASBESTOS: THINK AGAIN: ASBESTOS IS STILL NOT BANNED. Available: http://www.ewg.org/research/asbestos-think-again/asbestos-still-not-banned. Last accessed 10/05/16.

[xxi] Melissa Lee Phillips. (2006). Obstructing Authority: Does the EPA Have the Power to Ensure Commercial Chemicals Are Safe?. Available: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1764141/. Last accessed 10/05/16.

[xxii] Sonya Lunder. (2014). Asbestos kills 12,000-15,000 people per year in the U.S. Available: http://www.asbestosnation.org/facts/asbestos-kills-12000-15000-people-per-year-in-the-u-s/. Last accessed 10/05/16.

[xxiii] Contributor . (2013). MEPs call for removal of asbestos from all public buildings. Available: http://www.thejournal.ie/asbestos-european-parliament-855179-Apr2013/. Last accessed 10/05/16.

[xxiv] DANIEL ROSENBERG. (2013). TITLE I OF THE TOXIC SUBSTANCES CONTROL ACT; UNDERSTANDING ITS HISTORY AND REVIEWING ITS IMPACT. Available: file:///C:/ drosenberg-13111403a.pdf. Last accessed 10/05/16.

[xxv] Henriette Jacobsen. (2016). Consumer rights group launches petition to exclude cosmetics from TTIP. Available: http://www.euractiv.com/section/health-consumers/news/consumer-rights-group-launches-petition-to-exclude-cosmetics-from-ttip/. Last accessed 10/05/16.

[xxvi] Rebecca Trager . (2013). Reach is a big trade barrier, say US manufacturers. Available: http://www.rsc.org/chemistryworld/2013/11/reach-big-trade-barrier-us-manufacturers. Last accessed 10/05/16.

[xxvii] Greenpeace Press Release. (2016). Leaked TTIP documents confirm major risks for climate, environment and consumer safety. Available: http://www.greenpeace.org/international/en/press/releases/2016/Leaked-TTIP-documents-confirm-major-risks-for-climate-environment-and-consumer-safety/. Last accessed 10/05/16.

[xxviii] CIEL press release. (2016). European Commission Continues to Ignore Parliament on TTIP. Available: http://www.ciel.org/news/european-commission-continues-to-ignore-parliament-on-ttip/. Last accessed 10/05/16.

[xxix] Henriette Jacobsen. (2015). Sweden wins case against Commission on endocrine disruptors. Available: http://www.euractiv.com/section/health-consumers/news/sweden-wins-case-against-commission-on-endocrine-disruptors/. Last accessed 10/05/16.

[xxx] Contributor. (2015). Endocrine disruptors: European Commission ‘breached law’. Available: http://www.bbc.com/news/world-europe-35111241. Last accessed 01/05/16.

[xxxi] Alexandra Zissu. (2016). 9 Ways to Avoid Hormone-Disrupting Chemicals. Available: https://www.nrdc.org/stories/9-ways-avoid-hormone-disrupting-chemicals. Last accessed 01/05/16.

[xxxii] Aaron Lohr. (2015). Estimated Costs of Endocrine-Disrupting Chemical Exposure Exceed €150 Billion Annually in EU. Available: https://www.endocrine.org/news-room/press-release-archives/2015/estimated-costs-of-endocrine-disrupting-chemical-exposure-exceed-150-billion-annually-in-eu. Last accessed 01/05/16.

[xxxiii] Contributor. (2015). Sweden wins case over EDC criteria delay.Available: https://chemicalwatch.com/44159/sweden-wins-case-over-edc-criteria-delay. Last accessed 01/05/16.

[xxxiv] Samuel Loewenberg. (2006). Watering down of EU regulations on chemicals proves power of lobbyists. Available: http://www.irishtimes.com/news/watering-down-of-eu-regulations-on-chemicals-proves-power-of-lobbyists-1.1002128. Last accessed 01/05/16.

[xxxv] Greenpeace Press Release . (2016). Analysis of Leaked TTIP Chapters and Papers. Available: http://www.greenpeace.org/eu-unit/Global/eu-unit/reports-briefings/2016/TTIP%20leaks%20analysis.pdf. Last accessed 01/05/16.

[xxxvi] Ian Traynor . (2014). 30,000 lobbyists and counting: is Brussels under corporate sway?. Available: http://www.theguardian.com/world/2014/may/08/lobbyists-european-parliament-brussels-corporate. Last accessed 01/05/16.

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