Only a deep, structural reform of US chemicals legislation can be the basis of regulatory trans-Atlantic cooperation, writes Baskut Tuncak. Anything less is a stalling tactic.
Baskut Tuncak is the Chemicals Program Attorney for the Center for International Environmental Law (CIEL)
It might come as a shock to EU voters to learn exactly how weak US laws are when it comes to toxic chemicals, especially when the US’s chief negotiator for the Trans-Atlantic Trade and Investment Partnership (TTIP) has been claiming otherwise. This unprecedented “trade” agreement is primarily about regulation, and threatens to create new and additional avenues for industry and government to use their influence to stall necessary action on toxic chemicals, climate change, and other critical issues that must be addressed by the EU and global community to protect human health and the environment.
How weak are US laws for toxic chemicals? Only eleven ingredients are restricted from cosmetics in the US, versus over 1300 in the EU. Under a law dating back to 1976, US regulators have only been able to restrict the use of merely five of over 60,000 industrial chemicals that were presumed safe when the law was adopted, including asbestos. Under this law, and despite over a century of substantial evidence of serious adverse effects, US regulators were unable demonstrate sufficient “risk” to justify a ban on the use of asbestos, unlike EU counterparts. Moving ahead of the US, the EU has started to implement legislation that has the potential to systematically substitute over 1000 toxic chemicals—including those linked to cancer, interference with hormone systems, reproductive harms, and other serious adverse health effects—with safer alternatives in a wide range of everyday products. The US has no such law.
In a recent op-ed about TTIP, the European Chemical Industry Council (Cefic) reductively asked whether “NGOs really believe better regulation is a bad thing?” Of course not. However, to CIEL and ClientEarth, “better regulation” requires putting protection of public health and the environment at the center of the debate. Better regulation eliminates toxic chemicals, providing financial savings to governments and individuals from avoiding the spiraling costs of remediation and other associated diseases, like cancer. Better regulation recognizes that stronger laws for public health and environmental concerns drives businesses to innovate, enabling EU companies to maintain economic competitiveness. Put simply: TTIP is not about better regulation. Here is why.
Leaked documents written by government and industry reveal an intention to create an overarching body of EU and US regulators to coordinate lawmaking by both trading blocs, including laws of EU Member States and the individual states of the US. This proposed body, called the Regulatory Cooperation Council (RCC) by the EU, would oversee the development and implementation of the vast majority of laws that protect public health, consumers, workers, the integrity of our banks, and the environment in both the EU and US. Industry lobbyists, such as AmCham and Cefic, propose regulators use sweeping tools for regulatory cooperation such as “mutual recognition,” which could erase important differences between US and EU laws, and impede the development of better regulation in the future.
As proposed, the overarching body would hold regulatory dialogs between counterparts across the Atlantic throughout the lawmaking processes; creating new and additional opportunities for industry to influence decisions under the guise of “transparency;” and carry out trade impact assessments for essentially every significant regulatory or legislative proposal. In the US, even without the added burden of trade impact assessments, onerous cost-benefit analyses have frozen the implementation of key provisions of the primary US law for toxic chemicals by regulators. These and other procedures proposed would fundamentally alter—and delay—the development and implementation of new and existing legislation in the EU and US.
Implementation is the key for existing legislation, whether it is at the state, national or international level. While the EU was proposing to move towards better regulation over a decade ago, an alliance of US Government officials and the chemical industry lobbied vehemently against EU policies that would protect people and the environment. That trend still continues today, with industry and allied lawmakers using trade-related arguments to further block progressive action on endocrine (or hormone) disrupting chemicals in the EU. Proposals for TTIP would create a permanent opportunity for industry and foreign interests to undermine the implementation of EU laws passed through a democratic process, and obstruct the adoption of legislation that puts the public interest ahead of profit.
Because pending legislation championed by the chemical industry in the US Congress to “modernize” US chemical laws bears no resemblance to modern EU policies, TTIP offers EU taxpayers slower progress in reducing exposure to toxic chemicals and increased economic costs, not the hypothetical benefits suggested by Cefic. Only a deep, structural reform of US chemicals legislation could be the basis of regulatory cooperation between both sides of the Atlantic. Anything less is a stalling tactic.
Indeed, TTIP is primarily about regulation. But, let’s be clear, TTIP is not about better regulation.