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June 1, 2015

The Washington Monthly Quotes Lynn L. Bergeson on TSCA Reform Bill

The ACTA Group

Lynn L. Bergeson was quoted in “Pick Your Poison,” an article in the Summer 2015 Washington Monthly discussing Toxic Substances Control Act (TSCA) modernization.

In the absence of appropriate federal protections, states have stepped into the breach, promulgating their own rules. Under current TSCA regulations, unless and until the EPA regulates a chemical, states can issue their own limits. Those that have done so include California, New York, Vermont, Washington, Massachusetts, and Maryland. Among the many rules are New York’s ban on children’s goods that contain dangerous levels of hazardous substances and California’s far-reaching Proposition 65, passed in 1986. Among other provisions, Prop. 65 put much tighter strictures on industrial discharges into waterways and forced manufacturers to alert the public before knowingly and intentionally exposing them to chemicals deemed hazardous by the state. The latter provision has resulted in a wide range of consumer-goods companies not only using warning labels to indicate potential dangers, but also reformulating their products to reduce toxic chemicals.

Unsurprisingly, chemical manufacturers don’t like this. The industry complains that state-level powers have led to a regulatory patchwork that is unwieldy and costly. “If a chemical maker disagrees with one state determination, why should that one state influence an entire national product line for a company?” said Lynn Bergeson, a chemical industry lawyer at the firm Bergeson & Campbell. “Why should one state dictate the market?” […]

One reason the industry wants to minimize state power is because when a state regulates a chemical, that substance will likely be shunned in markets nationwide regardless of the EPA’s ultimate safety determination, according to Bergeson. “You don’t want to authorize states to do something that could be disadvantageous for business,” she said.