Toxic commerce flourishes in the opaque US regulatory environment. For over thirty years, corporate members of the American Chemistry Council (ACC) have enjoyed the confidentiality and toothless nature of the most important chemical regulation that applies to them: the Toxic Substances Control Act (TSCA).

But the days of secrecy and unregulated access for new chemicals are numbered. For seven years, Sen. Frank Lautenberg (D-NJ) tried to push TSCA reform legislation through the Senate environment committee. On Wednesday, his Safe Chemicals Act finally cleared this hurdle by a 10-to-8 party line vote.

ACC chair Cal Dooley last month called the Lautenberg bill an "extreme proposal," and Republican senators professed economic, safety, and even national security reasons not to support it.

While the bill may not survive a polarized legislative branch, the vote convincingly demonstrates growing momentum for controlling toxic commerce. It reflects marketplace and public policy developments outside Washington, D.C. Ingredient disclosure and testing requirements are on the rise in private transactions, from building products to cosmetics, as well as state regulations, and regional directives such as the European Union's REACH.

Industry secrets exposed

On Tuesday, the Senate committee aired the dirty laundry of the flame retardant industry. Witness testimony built the case for reforming TSCA.

Heather Stapleton, a Duke University environmental chemist, discussed her groundbreaking study of 101 baby products that contain polyurethane foam. She found that 79 of these products contained halogenated flame retardants. Some of the compounds were not previously known to be in commercial use.

Despite industry claims of confidential business information, her lab was able to identify the compounds with precision. "In this day and age, it is not difficult to determine," she told the committee.

Stapleton linked the rising use of these flame retardants with the rising levels of these compounds in Americans' bodies. Many infants spend almost 24 hours a day in "intimate contact" with these products. The end result is that people in the United States - especially children - have ten times higher levels of these flame retardants in their blood than do people in Europe.

A failed strategy

Former Maine Speaker of the House Hannah Pingree recounted Maine's battles with the flame retardant industry. "The chemical industry does not always tell the truth, and they will use a variety of means to beat back the regulations," she said. "The ACC was spending large amounts of money to deny that the chemicals had health impacts and were building up in people."

Old-school corporate tactics did not work. "The people of Maine didn't buy it," noted Speaker Pingree. Legislation to ban three brominated flame retardants "passed nearly unanimously. We didn't want to be on the wrong side of protecting Maine kids, and despite a lot of money, we still won."

The tide has turned

All transactions are political, whether they involve passing legislation or buying produce. And from the halls of legislatures to the aisles of grocery stores, people are demanding material content disclosure. We are refusing to purchase products that either do not disclose or contain chemicals of concern.

This kind of market transformation is underway in the building materials sector, through platforms like the Pharos Project and the Health Product Declaration. We can also see it in the USGBC's continued resolve to offer credits for reducing toxic chemicals in LEED®-certified buildings.

As Sen. Sheldon Whitehouse (D-RI) told Speaker Pingree, "Sometimes the good guys can win despite all the machinations of special interests."

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Jim Vallette is senior researcher for the Healthy Building Network. He previously addressed trade secrecy and flame retardants in "Clearing a Flame Retardant Smoke Screen," published by the Pharos Project in January 2010.