Industry Opposition to Toxics: How the chemical industry undermines state efforts.

 

 

In 2010, dozens of laws were passed in statehouses and localities to protect children, families and workers from toxic chemicals. The laws ranged the gamut from bisphenol-A (BPA) restrictions, to laws promoting green chemicals in state buildings, to comprehensive laws moving toward a healthier, greener approach to chemicals in particular states.

As different as these laws were, nearly every one shared something in common: loud and highly paid opposition from the chemical industry, an industry which is not willing to yield to public outcry and scientific evidence and move toward a safer lifecycle for products which we use every day.

The chemical industry is an incredibly influential force in the United States, and around the world. The loudest voice in the industry is its trade association, the American Chemistry Council (ACC). It represents over 150 of the largest chemical manufacturers in this country, including the $46 billion chlorine industry and the plastics industry which touches every part of our lives, provides $379 billion in annual shipments and employs 850,000 workers .

Some of the largest companies in the chemical industry are BASF, Bayer Group, DuPont and Dow Chemical. Most of the large players produce chemicals which are used in the production of other products. For instance, among thousands of products, BASF makes dyes used in clothing manufacture, fungicides and insecticides used in farming, coatings and solvents used in electronics, foams used in construction and appliances, and even acid that is used to disinfect kegs and barrels in breweries and wineries.

Peruse the websites of any of these global companies, and you will see a lot of real estate given to the environment and chemical reform. On the front page of the ACC's site, you see reference to their "10 Principles for Modernizing TSCA," the main law governing federal regulation of toxic chemicals that was passed in 1976 and is hopelessly out of date. The truth, however, is organizations like the ACC push against health advocates every step of the way. They may say they are interested in reform, but only as it relates to their bottom line.

The methods that the chemical industry uses to overturn efforts to make a safer, healthier environment for our families fall into four categories which will be discussed here:

• Scare tactics and economic threats,
• Out-of-state pushes against toxics reform,
• Gutting state laws in favor of federal law, and
• High-priced lobbyists, powerful friends, backroom deals.

Tactic #1
Scare tactics and economic threats.

In September 2010, a law banning BPA from children's containers in California was set to pass. It had passed the California State Assembly and Senate, and was just back in the Senate for a final procedural vote.

BPA is a chemical that is used in hard plastics and epoxy resins, and is nearly ubiquitous in modern life; it's found in food containers, children's toys, register receipts and even toilet paper. BPA is a hormone-disrupting chemical, which means that it can mimic or block hormones and disrupt the body's normal functions. Hundreds of scientific studies have tied BPA to health concerns including reproductive issues, miscarriage, diabetes and obesity, cancer, behavioral impacts in young children, and brain development.

In a last minute push, highly paid lobbyists from industry misled lawmakers with claims that production plants would close, that a BPA ban would cause an infant formula shortage, and that alternative products were not available -- all untrue. At the time, BPA had already been banned in seven states (now nine), Canada, the European Union, many localities around the country, and many big corporations producing children's containers had already eliminated BPA from products.

Everything about the defeat of the California BPA ban was extremely strategized, and nothing was left to chance. According to The Breast Cancer Fund, an organization which worked extremely hard on the bill's passage, industry meeting notes leaked in a 2009 documented plans to thwart the California legislation by "befriending people that are able to manipulate the legislative process and use "fear tactics" to scare the public into opposing the BPA ban.

"I hate to say it, but after an intensive and expensive lobbying campaign by the chemical and pharmaceutical industries, it looks like big money has trumped the health of babies in the California legislature today."

- Gretchen Salter, Breast Cancer Fund

The way that industry tells the story, bans such as the California BPA ban harm all companies that are affected. But the truth is companies that listen to the public outcry against toxic chemicals and use it to their advantage often thrive. Klean Kanteen, a California-based company which produces metal bottles for beverage transport and consumption, says that their sales have increased more than 800% since the health risks of BPA were reported in mainstream media. Fighting the idea that banning BPA is unequivocally bad for business, founder Jeff Creswell wrote in the Capitol Weekly:

"I tell our story to make a point. Klean Kanteen, along with many other purveyors of BPA-free products, have experienced considerable growth because consumers are looking for alternatives to products with chemicals known or even suspected of causing health concerns. We are examples of the economic promise of the clean, green industries that are California's future."

- Klean Kanteen founder Jeff Creswell

Tactic #2
Out of state pushes against toxics reform.

One of the most insidious ways that the chemical industry and its allies push against state toxics reform is to descend upon a particular state, pushing legislators and wielding influence as outsiders. As we go to press, this scenario is playing out in dramatic manner in Maine.

In 2008, Maine passed the "Kid Safe Products Act," one of the strongest toxic chemical laws in the nation. It requires the state to adopt a list of priority chemicals which are harmful to children, and manufacturers to disclose those chemicals and move toward safer alternatives. Under this law, Maine's Board of Environmental Protection recently recommended the phase-out of BPA from baby bottles and sippy cups, a restriction that is common among BPA laws throughout the country.

Upon his election as Governor of Maine in November 2010, Paul LePage, a Tea Party-backed Republican, quickly set his sights on repealing the Kid Safe Products Law and questioning whether BPA needed to be removed from children's products. In a strange and amazing turn of events, Governor Le Page stated, to the outrage of many in the health community, "The only thing that I've heard is if you take a plastic bottle and put it in the microwave and you heat it up, it gives off a chemical similar to estrogen. So the worst case is some women may have little beards." This prompted Mike Belliveau, executive director of the Environmental Health Strategy Center, to respond, "It displays shocking ignorance for the science and a callous disregard for children's health."

A piece published by the Maine Public Broadcasting Network in January 2011 reported that most of the opposition to the Kid Safe Products Act, and to the BPA repeal was coming from out-of-state chemical companies and trade associations. And while the Governor is insisting that the repeals are coming at the behest of in-state business owners, an investigation by The Boston Phoenix tells a different story: the lobbyists and the interests of large trade groups have the ear of the governor, and even are providing documents which are being passed off as being from the administration.

"I think you can safely say that there is unprecedented access for big out-of-state companies to influence legislative proposals in the state of Maine … Repealing these laws will not create a single job in Maine. There isn't a single Maine businessperson who says, 'you know, the reason I can't grow my business is that law that gets brominated fire retardants out of mattresses or BPA out of babies' bottles.' It's ludicrous."

- Matt Prindiville, Project Director, Natural Resources Council of Maine.

In a statement on February 17, partner organization Environmental Health Strategy Center stated that not a single Maine company stood up in opposition to the Kid Safe Products Act in 2008 or against the BPA rules adopted in 2010. They say, "The exclusive opposition to these protective laws comes from the chemical industry including Dow Chemical who manufactures BPA and the national chemical manufacturers trade association and toy industry giants including Hasbro and Mattel which want to continue to sell toys to Maine parents without disclosing which ones contain BPA."

The attention to state laws by out-of-state interests is playing out across the country. Those who are trying to pass toxics laws in any municipality or state across the country can be sure that they will garner the laser-focused attention of the chemical industry.

Tactic #3
Gut state laws in favor of federal law: State pre-emption.

Many of the pleas that you'll see the chemical industry make to the government boil down to a single idea: instead of following state laws, they want the federal government to pass an over-arching toxic chemicals law that would overrule all the state laws and render them powerless. This is called "state preemption" and has been used by all manner of industry including the tobacco industry fighting smoking laws, the food industry fighting state labeling or ingredient laws, the pesticide industry fighting local farming laws, the beverage industry fighting local alcohol laws, and the firearms industry fighting local gun laws.

State preemption is a tactic usually employed by industry appealing to the courts or the federal government because they find state laws too restrictive, and they want to abide by a looser national law. Of course the industries would not be in favor of state preemption if the federal law were stricter than the state laws. But the truth is that the federal laws are currently much looser.

The Toxic Substances Control Act (TSCA), the law that oversees toxic chemical regulation on the federal level, is over 30 years old. While laws attempting to overhaul TSCA were introduced last Congressional session, and are being reintroduced this session, reform on the state level is moving much more quickly than reform on the federal level.

For over twenty years, the states have been working to ban chemicals that the federal government hasn't: mercury, cadmium, BPA, formaldehyde and toxic flame retardants just to name a few chemicals. Additionally, the states have been passing comprehensive toxics laws which change the entire approach on a state level to promoting safe chemical alternatives, green chemistry, and phasing out toxic chemicals. To gut these laws in favor of likely less protective federal laws is a major step backward for the health of kids and families.

Tactic #4
High-priced lobbyists, powerful friends, backroom deals.

How can industry opponents to toxics laws be in so many places at once, fighting all the laws that are trying to follow public opinion and regulate toxics? The answer is easy: lots and lots of money.

In many states, the ACC employs local lobbyists to represent their interests. It's hard to estimate nationwide total amount of money being spent against toxics reform, but we know the opposition is bankrolled in the millions. For instance, the opposition to the California BPA ban was reportedly funded to the tune of $5 million, and state partner organizations are seeing expenditures in the hundreds of thousands of dollars each time they bring a toxics reform bill to the legislature.

And the ACC often calls in friendly organizations like the Grocery Manufacturers' Association, the Toy Industry Association, and others to wield money and influence against toxics laws and leverage even more money against reform.

Often the "friends" called in to fight against toxics reform aren't even directly affected by the proposed regulation. In Washington State this year, a Children's Safe Products Bill has been proposed that would help get toxic chemicals out of children's toys and products, the most vulnerable population in our society.

One of the groups loudly voicing opposition to the Children's Safe Products Bill is the Grocery Manufacturers Association -- the trade group that represents large grocery chains and that would not be affected by the proposed law in any significant way.

Why does the opposition to the trouble of calling in their friends, making backroom deals, and spending so much money? They are protecting the production of trillions of dollars of chemicals being pumped into our lives -- BPA alone is produced at the level of 6 million pounds a year. And the United States currently does not require government testing of these chemicals, so by the time BPA is being produced at such an amount, it is a major undertaking to tap into innovative green chemistry research and development then shift their operations toward safer alternatives.

Compare this to the organizations working hard for reform, and to carry out the will of the public who wants more assurance that their products are safe: non-profits, advocacy groups and volunteer groups which are typically run on a shoestring.

In all of this hard news about the seemingly insurmountable chemical industry, there is great news. More and more laws protecting families are being passed on the state level every year, and in landslide votes by legislators from both sides of the aisle, as shown by last year's Healthy States Report. The laws that are being passed are creating a wave of changes that the chemical industry can't ignore.

The grassroots support for toxic chemical reform is incredibly strong. Parents want to protect their children from endocrine-disrupting chemicals, and legislators are often hearing the yells of their constituents over the tactics employed by the chemical industry.