State Regulators to Consumers: Trust Us – Latest Draft of Green Chemistry Regulations Includes Worrisome Gaps

Jim Conran
President, Consumers First and Former Director, CA Department of Consumer Affairs

Maybe I’ve become too cynical, but I can’t help feeling a bit wary when I sense someone is trying too hard to win me over. Even if it’s just a pitchman demonstrating a kitchen implement I shouldn’t be able to live without, I find myself wondering: “Why the urgent appeal; what are you hoping I won’t pause long enough to notice?”

It’s a feeling that returned recently when I came across the impressive burst of publicity surrounding California’s attempt to finally write regulations for its Green Chemistry Initiative. These are the rules that, hopefully, will lead to safer consumer products and invigorated investment in our state.

Suddenly, there was the director of the Department of Toxic Substance Control reassuring me from YouTube videos and Facebook feeds that the department’s latest draft of regulations were charmingly simple. Gone was the sense of struggle that had accompanied earlier drafts of these regulations. Nowhere was an acknowledgment that writing regulations that satisfy both environmentalists and economists is a torturous task.

This draft was being sold as practical, meaningful and legally defensible. Consumers win. The environment wins. Public health wins. Business wins. These new regulations would protect the environment, improve public health and, I don’t know, make excellent salsa.

And yet, I found myself wondering about the reason for this charm offensive. I found myself asking things like, “Who’s going to pay for this?” and “What will this mean for the products I buy today?”

I’m sorry to report that looking more closely at the regulations was not a reassuring experience.

Most notable in this newest draft is the explosive growth in the list of “chemicals of concern.” A component once intended to identify which chemicals we really needed to worry about has grown from several hundred chemicals to somewhere close to 4,000. And nowhere in the draft is there an explanation of which chemicals or which health impacts would take priority in the department’s view.

So now there would be 4,000 chemicals and an incalculable number of products DTSC could choose to regulate if the notion strikes them. And that list, by the way, is anything but the list of “bad actors” the law envisioned. It includes such things as iron and aluminum, coffee (!), salted fish, pickled vegetables and leather dust.

Under this massive list, DTSC could, for example, force the maker of aluminum foil to conduct an expensive and detailed study of whether its product truly needed to include aluminum. The maker of chlorine for your swimming pool could be forced to spend millions in an effort to prove that manufacturing chlorine requires, well, chlorine. The department could require a sporting goods manufacturer to compile a room full of data on whether it was truly necessary to make baseball gloves out of leather. And don’t forget who pays for these studies, examinations and compliance efforts – YOU do, in the form of higher prices for the products you buy.

The DTSC is quick to explain that they have no intention of doing such things. They intend only to examine two or three products a year and will focus on those that include truly worrisome chemicals. They want, in short, us to trust them to apply the rules in a logical and restrained fashion.

But consumers’ trust should not be given lightly in these matters. Experience teaches us that regulatory bodies tend to regulate to the maximum of their potential, not to the minimum. Given a bit of time, if a California regulator can do it, it will do it.

Sometimes, it’s not even up to the regulators. At the EPA and elsewhere, we’ve seen how easy it is for activists to sue and force a regulatory body to take action, to reach for the absolute limit of its regulatory powers.

How do you suppose that process will fit with a list of 4,000 chemicals? What’s your bet on how many lawsuits eco-activists will bring to require DTSC reach deeper into its massive list of chemicals?

There are groups out there who passionately believe every health problem we face today — from cancer to obesity to warts — is the result of government’s refusal to ban every man-made substance under the sun. How long before these groups start beating up the DTSC with its own list? How long before they figure out they can use the legal system and DTSC’s miles-long list to block the production of any product they don’t think you should use?

Creating regulations that are truly practical and meaningful isn’t an easy task. The solutions we’ve charged DTSC with finding aren’t easy ones. There are tough questions that must be asked, no matter how convincing the sales pitch.

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