Shachi Mokashi: Why Is It So Difficult to Regulate Toxic Contamination?

The EU is backsliding on commitments to properly regulate toxic chemicals.

Shachi Mokashi is a writer focusing on environmental politics.

Cross-posted from the Green European Journal

Picture by Formosa Wandering

In 2020, the European Commission rolled out a Chemicals Strategy for Sustainability in order to “move towards a toxic-free environment” by using “safe and sustainable chemicals”. Recognising the harm that toxic chemicals pose to our bodies and the environment, the Chemicals Strategy started to explore how existing legal provisions could be used to phase out toxic chemicals. The Chemicals Strategy was bolstered by the publication of a Restrictions Roadmap in April 2022. For the first time ever, the EU proposed banning entire groups of toxic chemicals instead of regulating them individually. Thinking about chemicals in groups is a powerful regulatory strategy as it restricts the chemical industry from producing “regrettable substitutions”– where one toxic substance is substituted for another modified chemical.

In October 2022, however, the political commitment to dealing with chemical toxicity wavered. The European Commission Work Programme for 2023 revealed that the plan to streamline and refine the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) would be delayed until the end of 2023. REACH is an important and complex piece of legislation that was going to be reformed in 2022 to make chemical regulation faster. This reform, combined with the proposed Restrictions Roadmap was a powerful strategy to limit further toxic contamination. However, this delay is a debilitating blow to restricting toxicity in any structural and urgent way.

The toxic chemicals in question are found everywhere and in everything. Some of the chemicals that the EU is planning to phase out are found in sunscreens, single-use baby diapers, and plastic products, to name a few. Despite an exponentially growing body of scientific evidence that points to the harm that toxic chemicals do to our bodies and our environment, policymakers and regulatory bodies don’t seem to act with the urgency that this issue clearly demands.

The European Environmental Bureau recently published a reportThe Need for Speed, which put regulatory timelines into perspective. Officials have three weeks to allow a chemical into the market. But, “the best case scenario for controlling any newly recognised chemical threat takes over two years through the Restrictions process. The slowest takes over 22 years”. What ends up happening is that the chemical is allowed into the market for active use before the assessment and regulatory process can begin. In case of toxic chemicals, it takes years to regulate them even after their toxicity has been established.

The REACH reform was an effort to streamline this slow process. It was also an acknowledgment that environmental legislation desperately needs an update. However, what happened in October this year was a step back. Why does environmental regulation lag so far behind scientific progress that has shown that chemical contamination is hazardous to our environment and bodies? Why are chemicals seamlessly allowed onto the market but phasing them out takes decades?

A leaking regulatory system

The EU’s chemical regulatory process is designed to prioritise bringing chemicals to the market over assessing their safety. One of the reasons that restricting chemicals can stretch over decades is because the process does not actually have deadlines. While officials have about three weeks to allow a chemical onto the market, there is no deadline to phase it out. The fact that it can take over two decades to regulate a toxic chemical is not a failure of the system or an indication that something has gone wrong. The regulatory system’s design allows for this.

Tatiana Santos, the Head of Chemicals Policy at the European Environmental Bureau, explained that “environmental protection is undermined by political ideologies, economic interests, and a system which prioritises the market over our protection.” It is often the chemical industry that plays a large role in delaying environmental legislation and stalling the regulatory process. In the case of REACH, for example, Santos mentioned that the German chemical industry played a large role in delaying the planned reforms. The regulatory process, therefore, is not immune to the influences of the industry it attempts to regulate.

Speaking about PFAS, (perfluoroalkyl and polyfluoroalkyl substances), David Bond, the Associate Director of the Center for the Advancement of Public Action (CAPA) at Bennington College, highlighted that “environmental regulations are premised on a different order of toxicity.” PFAS are complex, toxic substances found in many everyday products like non-stick cookware, plastic packaging, and clothing. Bond explained that PFAS exist everywhere on the planet, remain in our bodies and the environment forever, and even the smallest amounts of exposure can be hazardous to our health. “PFAS overwhelm the existing system” as regulations are not equipped or designed to deal with the scale and severity of PFAS contamination.

While the EU and the US have stark differences in their environmental regulations, the idea that existing systems are overwhelmed by a different order of toxicity can help us make sense of why both regulatory systems seem to be ineffective and slow. In the US and the EU, environmental regulations don’t consider that toxic chemicals, like PFAS, are actually mobile in the environment. They can travel far from the immediate source of contamination to remote places on the planet. With PFAS, “safe thresholds” of exposure are not a useful tool for regulators as even the smallest sustained exposure to the human body can cause endocrine disruption, cancers, and infertility.

The complexity of chemical exposure also overwhelms existing regulations. Regulations were not written to account for the fact that we are not exposed to just one chemical at a time. There is growing scientific concern that a sustained exposure to multiple chemicals simultaneously might intensify harmful effects of the individual compounds. Environmental regulations are not designed to respond to the complexity and urgency of toxic chemical contamination.

The REACH reform is the first step to changing the design of environmental regulation which adequately responds to the scale and severity of toxic contamination. It is a political acknowledgement that environmental regulations are insufficient. That is why its delay is so shocking. The European Commission, despite acknowledging the urgency this situation demands, simply deferred effective political action.

Evading the rules

Keeping environmental regulations as they are, both in the EU and the US, is a generous gift for the global chemical industry and other major polluters. The chemical industry thrives on delayed regulation and ineffective legislation.

When bisphenol-A (BPA), commonly used for manufacturing plastic containers and baby bottles, was linked to endocrine disruption and contamination of water bodies, EU and the US banned certain products containing BPA. By design, environmental regulations focus on individual compounds, so what did chemical companies do? They substituted BPA with a “structurally similar chemical” like bisphenol-S (BPS). Since BPS and BPA are almost chemically identical, the manufacturers could just use BPS in their production. Legally, however, BPS is a different entity that does not come under the same regulation. Chemical substitutions are more dangerous because we don’t exactly know whether the substitute will be safer.

Dealing with regrettable substitutions is actually quite simple. As the Restrictions Roadmap proposed, considering entire chemical groups limits how far chemical companies can go with their substitutions. We must make sure that legislation does not differentiate between similar chemical compounds but actually views it as an entire class of substances that cause harm.

Substitutions are not the industry’s only trick. There are far more insidious operations that attempt to cause delays in an already slow regulatory process. “The chemical industry has learnt a lot from the tobacco industry,” Santos said, “they [chemical industry] replicate similar tactics of disinformation, denial, diversion, and distortion”. Regulators often request data from chemical companies during the evaluation process. What companies do is “submit incomplete or flawed chemical hazard and exposure data” which can stall the regulatory process.

In addition to delaying regulatory processes, companies and industries spread disinformation campaigns about the safety of chemicals and hazards. In a report presented at the 48th Session of the UN Human Rights Council, Marcos A. Orellana, the Special Rapporteur on toxics and human rights, highlighted how the asbestos, plastic, and pesticide industries manufactured doubt around the toxicity of their products. Some of the tactics used by these companies include “ghost-writing studies to support an industry position”, manipulating the results of scientific studies, and suppressing critics.

Disinformation campaigns not only seek to vindicate the industry but also produce uncertainty around latest scientific evidence. Santos explained: “First, the industry denied that these chemicals were polluting our environment and bodies. When it was proven to exist in our bodies and are ubiquitous to our environment, the industry said that these chemicals are not harmful. When it was proven that these chemicals are harmful, the industry said that we can’t prove it was their chemicals that caused this harm”. Now that there are established links between certain toxic chemicals and harm, companies question existing scientific knowledge around toxic chemicals and routinely try to discredit evidence that links the chemical industry to contamination and harm. The chemical industry doesn’t seek spectacular victories, rather, it simply tries to delay effective regulation.

Fighting chemical toxicity

Deferring the REACH reform to the end of 2023 has been devastating in the fight against toxicity. It produces a lot of uncertainty about whether it is actually going to happen. As the reform is slated for the end of this year, it comes very close to the European Parliament elections in 2024, which means that it could be delayed further depending on the outcome of the elections.

While the recent developments have been devastating in the fight against toxicity, we do have victories which take us closer to a regulated and safe environment. Speaking about movements in the US, Bond said that “there is a public recognition of the crisis”. Similarly, Santos said that, “people are slowly becoming aware” that contamination may be invisible but it is very much present in the fabric of our everyday lives.

Being able to recognise this crisis and acknowledge its urgency is the first step to demanding better legislation that forces the chemical industry to produce non-toxic and safe chemicals. In the barrage of disinformation and denial campaigns, we need to demand precautionary legislation that shifts the burden of proof onto companies to show that their products are, in fact, non-toxic.

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